European Criminal Law:
What’s New for 2013?
Professor John Spencer
President
17 February 2013, 4.30
EU Criminal Law: what is it?
• Organisations: OLAF, Europol, Eurojust
• Police and Customs co-operation
• Prosecutors and Courts co-operation:
mutual assistance/ mutual recognition
(e.g. European Arrest Warrant)
• “Approximation” : substantive criminal law
• “Approximation”: criminal procedure
After Lisbon: the legal basis
• 82 TFEU “approximation” of criminal
procedure, so far as “necessary to
facilitate mutual recognition”
• 83 TFEU “approximation” of substantive
criminal law ona range of specified topics,
to which the Council can add, by
unanimous decision.
The UK opt-outs:
• Protocol 21 – out of new criminal justice
measures, unless we opt in, within three
months of the balloon going up
• Protocol 36 – if we want to, we have five
years to pull out the entire pre-Lisbon
package, too (!)
Coalition policy: “is there anything
in it for us?”
“We will approach forthcoming legislation
in the area of criminal justice on a caseby-case basis, with a view to maximising
our country’s security, protecting Britain’s
civil liberties and preserving the integrity of
our criminal justice system. Britain will not
participate in the establishment of any
European Public Prosecutor.”
Some measures the UK has opted
into after Lisbon
• Directive for a European Protection Order - in
• New Child Pornography Directive - in
• New Directive on People Trafficking – out, then
eventually in
• New Directive on Rights of Victims – out, then
eventually in
• Two Directives on Defence Rights - in
• Proposed new Directive on Cybercrime - in
• Proposed new Directive on a European
Investigation Order - in
European Investigation Order
Some measures the UK has said
“No thanks!” to
• Proposed new Directive on legal advice to
suspects
• Proposed new Directive on confiscation
orders
New measures on the horizon
• New Europol Regulation
• New Eurojust Regulation
• Proposal for an EPPO
“Corpus Juris Project”
Corpus Juris
Introducing penal provisions for the purpose of the
financial interests of the European Union
Sous la direction de
Mireille DELMAS-MARTY
Ec. Economica, 1997
European Union Act 2011
• The “Referendum Lock”
• No UK participation in a European Public
Prosecutor unless a national referendum
votes in favour (!)
The Protocol 36 Opt-out – what it
does not include:
• Measures, done and dusted, that the UK
has already opted-into since Lisbon
• Measures in the process of manufacture,
which the UK has already agreed it will opt
into
• Future EU criminal justice measures
adopted outside the parts of the Lisbon
Treaty to which the UK’s right to stand
aside does not apply
The Protocol 36 Opt-out: timeline
• December 2007: Lisbon Treaty signed, “Tony’s
Time-bomb” planted
• December 2009: Treaty in force
• January 2011: Ticking noticed; votes in both
Houses promised
• January 2012: Open Europe document
• February 2012: letter to theTelegraph
• 14 May 2012: Cambridge seminar
• 15 September 2012: CELS report
Time-line (continued)
• Late September: David Cameron in Brazil,
“We’re doing it!”
• 15 October: Teresa May – “We’re minded
to do it.” Daily Express “First Step to
Britain’s EU Exit”
• 30 October: Raab report (Open Europe)
• 1 November: speech by Nick Clegg
• 1 November: HL EU Committee calls for
evidence
Timeline (continued further)
• January 2013, HL Committee begins to
take evidence
• January 2013, Government says “no
decision until after Parliamentary debates;
and no debates until after your report”
• January 2013: David Cameron’s “Europe”
speech – “We’re doing it!”
• January 2013: Ken Clarke’s “30
measures”
Contrasting views on the EAW:
The Hussein Osman case, 2005
Compare views on
the Symeou Case
Developments with the EAW
• SC case-law: H. (H) v Deputy Prosecutor of
Italian Republic, Genoa [2012] UKSC 25; [2012]
3 WLR 90
• DC case-law: Krolik et al v Several Judicial
Authorities of Poland [2012] EWHC (Admin)
• CJEU case-law: Radu, C-396/11
• European Judicial Network Project
• Government response to Scott Baker Review
• Government attempts to negotiate in Europe
So what is behind the UK’s hostility
to EU criminal law?
“Because in Europe they have the
inquisitorial system”
“The moral superiority of the Common
Law”
(And widespread misunderstandings about
the Continental systems)
Euromyths
• EU to ban corgis
• EU to ban double-decker buses
• Under EU law, it is illegal to bury dead pets
unless you have pressure-cooked them first
• EU to ban barristers wigs
• Brussels has a secret plan to abolish
the Common Law and make us have
“the Napoleonic System”
“The Roadmap”
• Measure A: Translation and Interpretation
• Measure B: Information on Rights and
Information about the Charges
• Measure C: Legal Advice and Legal Aid
• Measure D: Communication with Relatives,
Employers and Consular Officials
• Measure E: Special Safeguards for Suspected
or Accused Persons who are Vulnerable
• Measure F: A Green Paper on Pre-Trial
Detention
What the UK has done about the
Roadmap…
• Translation and interpretation: we’re in!
• Information: we’re in
• Legal advice and communication: we’ve
declined to join
• Green Paper on Pre-trial Detention?
Governmental response: “no legislation”
What English criminal procedure
has to offer Europe
• Controlling police interviews with suspects
• Limiting pre-trial detention
The PACE safeguards
• the right to a solicitor: s.58
• rules about the duration of interrogations:
Code C 12 (especially12.8)
• the duty to make contemporaneous notes,
and to give the suspect the chance to
verify them: Code C.11
• duty to caution: Code C.10
• tape-recording: PACE s.60; Code E