EU Criminal Law – the Present and the Future?
J.R. SPENCER
I was very pleased to be invited to make a contribution to A Constutitonal Order of
States, a project in honour of Alan Dashwood. To my pleasure was added an element of
surprise, however, because my involvement with EU law is rather a narrow one. I am
primarily a ‘pénaliste’, whose involvement with EU law is a sideline that began by
accident when, some 15 years ago, I was co-opted to the group that eventually produced
the Corpus Juris project: the controversial proposal which, as readers will presumably
remember, suggested as a solution to the problem of frauds on the Community budget a
special code of criminal offences, enforced by a European Public Prosecutor who could
operate in all the Member States1.
My contribution to this book of essays is a general essay about the EU and criminal law.
General as it is, I hope it will be useful, even in a book of essays that is aimed at what
might be called ‘hard-core EU lawyers’. At present, EU criminal law is a is double
mystery, because each of the two groups of people who ought to be interested in it firmly
believes that it is exclusively a matter for the other. Criminal lawyers usually refuse to
look at EU criminal law because they see it as a topic for the EU lawyers, and
mainstream EU lawyers avoid it because they see it as a topic for the criminal lawyers.
So a general essay of the type that follows has its place, I believe, even in this more
specialist type of book.2
EU CRIMINAL LAW: WHY?
The first question that arises is in this context is why there should be such a thing as EU
criminal law at all. The purposes of the EEC (as it originally was) were economic: to
promote peace, first by linking the economies of the European nation states together in
such a way that war between them would in future be unthinkable, and secondly, by
diverting the energies of their inhabitants from national rivalry to national and collective
economic growth – along the lines of Dr Johnston’s famous comment that ‘‘There are
1
CORPUS JURIS, Introducing Penal Provisions for the Purpose of the Financial Interests of the
European Union, Editions Economica, Paris (1997) (sous la direction de M Delmas-Marty). A
revised version of the project appeared in 2000, together with a three-volume supporting study, as
The Implementation of the Corpus Juris in the Member States (edited by M Delmas-Marty and J
A E Vervaele), (Intersentia, Antwerp, Groningen and Oxford (2000). See J R Spencer, ‘‘The
Corpus Juris project and the Fight Against Budgetary Fraud’’ (1998) 1 Cambridge Yearbook of
European Legal Studies 77; J R Spencer, ‘‘The Corpus Juris Project – Has it a Future?’’ (1999) 2
Cambridge Yearbook of European Legal Studies 355; and the House of Lords Select Committee
on the European Communities, 9th Report, 1998-99 Session, Prosecuting Fraud on the
Communities’ Finances – the Corpus Juris, HL Paper 62.
2
The recent appearance of two excellent books on the subject written in English may help to
dispel the mystery: V Mitsilegas, EU Criminal Law (Oxford, Hart, 2009) and A Klip, European
Criminal Law (Antwerp, Oxford and Portland, Intersentia, 2009). For a succinct account of the
recent history of EU criminal law see E Baker, ‘‘The European Union’s ‘Area of Freedom,
Security and (Criminal) Justice’ Ten Years On’’, [2010] Criminal Law Review 833.
1
few ways in which a man can be more innocently employed than in getting money.’’3
The corner-stone of this operation was the creation of a single economic area in which
there would be free movement of workers, services, goods and capital. At first sight, it is
not obvious to see where criminal law appears on this agenda – particularly as criminal
justice is usually regarded as an area where national differences are particularly marked,
national sovereignty is guarded with particular jealousy, and all talk of harmonisation is
particularly unrealistic. To quote Harold Gutteridge, a famous comparatist and
Cambridge professor of an earlier age, studying the criminal law of other countries is
interesting, but ‘‘… the unification of criminal law is either impossible or, if possible,
would be undesirable …’’4
However, a reflection quickly shows that EU law must necessarily impinge on the
criminal law of the Member States in a negative sense; and experience over recent years
shows a growing practical need for it to do so positively as well.
EU law impinges negatively on national criminal law because it takes precedence over
national law, including national criminal law, and therefore nullifies rules of national
criminal law that conflict with it. Thus, for example, EU law provides for free moment of
capital, which means that it is not open to national criminal law to penalise the removal
of money from one Member State to another.5 Less obviously, it also negatively
impinges on national criminal justice systems because it prohibits them being used (or
selectively not used) in ways that frustrate the purposes and policies of the Union –
including, first and foremost, its central policy of ‘‘free movement’’. It is one of the
central Treaty obligations of the Member States that they shall ‘‘take any appropriate
measures, general or particular, to ensure fulfilment of the obligations arising out of the
Treaties or resulting from the acts of the institutions of the Union.’’6 Situations
sometimes arise in which the only effective ‘‘appropriate measure’’ is the use, by a
Member State, of its criminal justice system: and a Member State that fails to bring its
criminal justice system to bear in such a case will be in breach of this obligation. And so
it was that, some years ago, France was condemned when the French authorities failed to
use the criminal law to stop rioting French farmers physically blocking the import of
agricultural products from other Member States.7
EU law impinges on national criminal law positively when the EU consciously creates
new rules at European level that force the criminal justice systems of the Member States
to change their existing rules and practices and replace them by new ones: for example,
by requiring them in future to co-operate with new bodies and organisations set up by
Boswell, Life of Johnson (L.F. Powell’s revision of G.B. Hill’s edition), vol. II, p.323.
H C Gutteridge, Comparative Law – an Introduction to the Comparative Method of Legal Study
and Research (Cambridge, CUP, 1949), 30.
5
Joined Cases C-358/93 and C-416/93 Aldo Bordess and Others [1995] ECR 1-361.
6
Treaty on European Union, Article 4(3); reproducing an obligation already existing by virtue of
Article 10 of the EC Treaty.
7
Case C-265-95 Commission v French Republic [1997] ECR 1-6959. See E Baker, ‘‘Criminal
jurisdiction, the public dimension to ‘effective protection’ and the construction of communitycitizen relations’ (2001) 4 Cambridge Yearbook of European Legal Studies, 25.
3
4
2
‘‘Brussels’’, requiring their criminal courts to give automatic recognition to decisions of
the criminal courts of other Member States, or requiring them to pass laws creating new
criminal offences or to punish already-existing criminal offences more severely. The last
fifteen years have seen a rapid growth of EU legislation of this type, the collective
product of which is usually called ‘‘EU criminal law’’. In the following pages, we shall
see a number of practical examples of all of these.
The main reason for this rapid growth of EU criminal law is a practical one: the
appearance of what might be called the ‘‘fifth freedom’’. In the wake of the free
movement of workers, services, goods and capital has come a form of free movement that
was both unintended and undesirable, namely that of of criminals and crime. At the
simplest and most obvious level, open borders and cheap transport between Member
States combine to make it far easier than it used to be for a crime to be committed in
State A and the criminal to remove himself to State B, where the police and prosecutors
of State A cannot catch him orher. In the face of this, the traditional process of extradition
– by which the transfer of a wanted person across the Channel could be achieved, but it
might take six years and cost the taxpayer £120,0008 – obviously had to be replaced by a
process that was quicker and cheaper; as it was, with effect from 31 December 2003, by
the European Arrest Warrant, 9 of which more later. The ‘‘fifth freedom’’ also means an
increase in ‘‘trans-border’’ crimes – for example, smuggling, or carousel fraud – where
part of the offence takes place in one Member State and part of it in another, and these
also create a need for various forms of EU criminal law. The effective prosecution of a
‘‘trans-border’’ offence is likely to be dependent on the ability of one Member State to
obtain evidence from another: whence pressure to replace the traditional process of
‘‘mutual legal assistance’’, which is cumbersome and slow, with a new and swifter
process, modelled on the European Arrest Warrant.10
Criminal offences committed across borders also give rise to practical issues of coordination. Suppose a people-smuggling operation is planned in London, using a route
that brings the illegal immigrants into Europe via Belgium, whence they are distributed to
France, Germany and Italy with the help of associates operating there. In this situation,
which Member State or States should be responsible for the investigation and resulting
prosecution? It was to deal with issues of this sort that Eurojust was created in 200211.The
fact that several different States have jurisdiction also raises the oppressive possibility of
successive prosecutions, in different Member States, of the same people for the same
offence. To deal with this concern an article on ‘‘double jeopardy’’, alias ne bis in idem
8
An example given to Parliament by the Minister, Mr John Denham, on the Second Reading of
the Extradition Bill in the Commons: HC 396 col. 396, 9 December 2002.
9
Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the
Surrender Procedures Between Member States, (2002/584/JHA), OJ L.190/1, 18.7.2002.
10
Hence the proposal for a ‘European Investigation Order’, discussed at p. 00 below.
11
Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treaty on
European Union the Convention on Mutual Assistance in Criminal Matters between the Member
States of the European Union, (2000/C 197/01) OJ 12.7.2000; Council Decision 2009/492/JHA of
16 December 2008 on strengthening Eurojust and amending decision 2002/187/JHA, OJ L
138/14, 4.6.2009.
3
was included in Schengen Agreement,12 the interpretation of which has given rise to a
series of cases before the ECJ;13 and with the same aim in mind, a Framework Decision
was adopted in 2009.14
Trans-border criminality also raises broader and more theoretical issues of co-ordination.
To deal with certain types of it effectively it is necessary, first and foremost, that all the
Member States should treat the behaviour in question as a criminal offence, and secondly,
that they all should visit it with penalties that are broadly similar. As Jean Pradel puts it,
‘‘It is necessary to discourage ‘criminal tourism’ which might encourage potential
criminals to choose the country which is the least repressive.’’15 It is this concern that lies
behind a number of Framework Decision and other instruments which require Member
States to criminalise certain forms of undesirable activity and to make them punishable
with certain types of penalty – for example, the Framework Decision of 2002 on
terrorism.16 Terrorism, obviously, is behaviour that directly threatens the interests of each
Member State. In some cases, however, behaviour must be punished because it poses a
threat, not to the Member States themselves, but to the interests of the European Union as
an institution. An obvious example, since the arrival of the ‘‘single currency’’, is
counterfeiting the euro.17 Another example is fraud on the Community budget.18
As well as practical reasons for the growth of EU criminal law there are ideological ones.
In 1999, the Treaty of Amsterdam amended the Maastrict Treaty by proclaiming the
objective of the European Union to be the creation of ‘‘an area of freedom, security and
justice’’ – a commitment now reiterated in 67(1) of the TFEU. Though capable of being
used by authoritarians as a pretext for the creation of ‘‘an area in which the authorities
have freedom to bring those who threaten the security of the state to justice’, the ‘‘AFSJ’’
potentially conveys a message that is more positive: the idea of area in all parts of which
citizens can be sure that the criminal justice system will treat those who come into
contact with it with a certain minimal level of humanity, consideration and efficiency. It
was in that spirit that, in 2001, a Framework Decision was adopted which guarantees
12
Article 54 of the Convention Implementing the Schengen Agreement. See Klip, note 2 above,
231 et seq; Mitsilegas, note 2 above, 143 et seq.
13
On this see Klip, note 2 above, 231 et seq; Mitsilegas, note 2 above, 143 et seq.
14
Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and
settlement of conflicts of exercise of jurisdiction in criminal proceedings,, OJ L 328/42,
12.12.2009.
15
J Pradel, ‘‘Les grandes tendances de l’européanisation des systèmes pénaux nationaux’ (2009)
50 Les Cahiers de Droit 1015, 1032.
16
Council Framework Decision of 13 June 2002 on combating terrorism (2002/475/JHA) OJ L
164/3, 22.6.2002.
17
Council Framework Decision of 29 May 2000 on increasing protection by criminal penalties
and other sanctions against counterfeiting in connection with the introduction of the euro,
(200/383/JHA), OJ L 104/1, OJ 14.6. 2000; Council Regulation (EC) No 1338/2001 of 28 June
2001 laying down measures necessary for the protection of the euro against counterfeiting, OJ L
181/6, 4.7.2001.
18
Hence the so-called ‘‘PIF Convention’’; see note 71 below.
4
certain minimum rights for victims in criminal proceedings.19 It is also in reality the
spirit that animates the current move towards a series of instruments designed to
guarantee various minimum rights for suspects and defendants; though as will be
explained later in this chapter, these are officially justified on instrumental grounds, as
being necessary to build ‘‘mutual trust’’ between the criminal justice systems of the
Member States, in the absence of which ‘‘mutual recognition’’ measures, like the
European Arrest Warrant, are unlikely to work smoothly.20
EU CRIMINAL LAW – WHAT IS IT?
The phrase ‘‘EU criminal law’’ suggests a European criminal code and a European
criminal procedure code, with a European public prosecutor to enforce them. Such were
indeed the elements of the system that was proposed 13 years ago in the Corpus Juris
project. Of this, no part has so far been implemented – although the TFEU does now
provide a treaty basis for a European Public Prosecutor, should the Member States at
some future point decide they want to have one.
At present, EU criminal law exists only in a looser sense, and in concrete terms
comprises the following four elements. (a) A group of European organisations created to
secure the better functioning of criminal justice; (b) a group of European instruments
enacted with the aim of enabling the criminal justice systems of the Member States to
tackle trans-border cases more effectively; (c) a group of European instruments
prescribing uniform rules of substantive criminal law which the Member States are
required to adopt; and (d) a smaller group of European instruments which, in a similar
way, prescribe rules of criminal procedure. In the next section of this chapter each of
these four elements will be examined in turn.
A. Organisations
(i) OLAF21
The oldest of these specialist organisations is the European Anti-Fraud Office, usually
known as OLAF, the acronym for its French name, l'Office européen de lutte anti-fraude.
This started life in 1988 as UCLAF (Unité de lutte anti-fraude), and was relaunched in
1999 as OLAF, with greater independence, a bigger staff, more extensive powers and a
supervisory body. Its powers and duties are set out in the Regulation adopted when it was
reconstituted.22 Its office, like that of the Commission to which it is formally attached, is
situated in Brussels.
19
Council Framework Decision of 15 March 2001 on the standing of victims in criminal
proceedings. This was the instrument that gave rise to the famous Pupino case , Case C-105/03,
[2005] ECR I-5285, [2006] QB 83; see note 77 below.
20
See page 000 below.
21
Mitsilegas, op cit note 2, 210 et seq.
22
Regulation (EC) No. 1073/1999 of the European Parliament and of the Council of 25 May 1999
concerning investigations conducted by the European Anti-Fraud Office (OLAF), OJ L 136,
31.5.1999.
5
As prescribed in the OLAF Regulation, the task of OLAF is to:
conduct administrative investigations for the purpose of fighting fraud, corruption
and any other illegal activity affecting the financial interests of the European
Community [and] investigating to that end serious matters relating to the
discharge of professional duties such as to constitute a dereliction of the
obligations of officials and other servants of the Communities…23
To this end, it was given wide inquisitorial powers. It is thus an example of the ‘vertical’
approach to the problems of crime within the European Union – as against the
‘horizontal’ approach, in which the role of the Union is limited to coordinating the efforts
of national authorities. The investigations that OLAF carries out are of two types:
‘external’ ones, where suspected fraud is investigated in Member States, and ‘internal’
ones, which target suspected frauds within the central organs of the Union. Having
carried out an investigation, and found what it believes to be criminal offences, OLAF
has no power to prosecute. It forwards its reports to the competent authorities of the
Member State whose courts have jurisdiction, who are then free to act on them. The
tendency of national prosecutors to ignore reports which OLAF believes to be well
founded is, of course, a source of deep frustration within OLAF – a matter which
explains why OLAF and its officials are staunch supporters of the proposal to create a
European Public Prosecutor.
If OLAF’s internal critics are mainly concerned about its inability to ensure that action is
taken against the frauds that its investigations bring to light, its external critics have
highlighted other and different matters.24 One of these is its awkward constitutional
position, because OLAF is at once a part of the Commission, and the organ responsible
for investigating frauds and improper practices within it. Another is the occasional heavyhandedness with which it has exercised its powers – which has led to several wellpublicised pieces of litigation.25
(ii) Europol26
The origin of Europol, the European Police Office, was a ‘Third Pillar’ Convention
concluded in 1995, which – after the usual delays for ratification which bedevil
legislation by Convention – eventually came into force in 1998. After the Convention had
been repeatedly modified, in April 2009 Europol acquired a new constitutional document:
23
Article 1(3).
Mitsilegas, op cit , note 2 above, 215-218; X Groussot and Z Popov, ‘What’s wrong with
OLAF? Accountability, due process and criminal justice in European anti-fraud policy’ (2010) 47
CMLRev 605. And see the House of Lords European Union Committee, 24th Report of Session
2003-04, Strengthening OLAF, the European Anti-Fraud Office, HL Paper 139.
25
Notably the Tillack case: (Case T-193/04, Tillack v Commission, [2006] ECR II-3995). For this
and other litigation see Mitsilegas, and Groussot and Popov, previous note.
26
Mitsilegas, op cit, 161 et seq; Klip, op cit note 2 above, 387 et seq.
24
6
the Europol Decision, a Council decision,27 with effect from 1 January 2010. Under this
document, as before, Europol comprises a Management Board with a representative from
every Member State, a Director (with three Deputy Directors), and a Supervising Body. It
has legal personality, and its seat is in The Hague.
By Article 3 of the Europol Decision, the objective of Europol is ‘to support and
strengthen action by the competent authorities of the Member States and their mutual
cooperation in preventing and combating organised crime, terrorism and other forms of
serious crime affecting two or more Member States.’
Though the idea of a ‘European FBI’ has had its vocal supporters,28 Europol bears little
resemblance to the Federal Bureau of Investigation in the United States. It is a
‘horizontal’ body, which has no operational powers, the basic task of which is the
collection, storing, analysis and exchange of information about criminals and crimes. To
this end, it runs the Europol Information System. Much of the Europol Decision is
concerned with the management of this Information System, and the issues of data
protection that arise from its existence.
However, Europol can become involved in operational policing to some limited extent.
First, by Article 6 of the Decision, Europol staff may participate in ‘joint investigation
teams’ set up groups of national police forces. And secondly, by Article 7 Europol has
the power to make a formal request to a Member State to take action in respect of a
particular case. A Member State that receives such a request is obliged to consider it, but
is not required to act on it. If it decides not to act on it, however, it must give Europol its
reasons, unless to do so would ‘harm essential national security interests’, or ‘jeopardise
the success of investigations under way or the safety of individuals’.
(iii) Eurojust 29
Eurojust is another manifestation of the ‘horizontal’ concept: an organisation designed to
co-ordinate the activities of public prosecutors in the different Member States. As such, it
actually represents the last in a line of three attempts to do so. The first, which began in
1996, was a scheme under which Member States lent one another ‘magistrats de liaison’
– prosecutors from one Member State who are seconded to another, in order to provide
help and advice. 30 The second, which was launched two years later, was a more
ambitious scheme for a ‘European Judicial Network’ – a network of public prosecutors
who, as ‘national contact points,’ are available to advise one another, and who meet all
together at least once a year, usually in the Member State which currently holds the
Presidency of the Council.31 Perhaps surprisingly, both of these earlier schemes have
27
Council Decision of 6 April 2009 establishing the European Police Office (Europol) ,
(2009/371/JHA), OJ L 121/37, 15.5.2009.
28
Including Helmut Kohl: see Mitsilegas, op cit, note 2 above, 162.
29
Mitsilegas, op cit, 187 et seq; Klip, op cit, note 2 above, 401 et seq.
30
Established by the Joint Action of 22 April 1996, OJ L 105, 27.4.1996.
31
Established by the Joint Action of 29 June 1998, OJ L 191, 7.7.1998,.
7
continued after the creation of Eurojust, the EJN even acquiring a new constitutional
document by a Council Decision in 2008.32
Eurojust came into being by a Council Decision in 2002,33 its constitution being amended
by a second Council Decision seven years later,34 and its legal position then being further
regulated by Articles 85 and 86 of the TFEU. The body that results from this jig-saw of
legislation is bigger, heavier and much more formal than the two schemes for ensuring
cooperation between prosecutors that preceded it, and in broad terms it does for public
prosecutors what Europol has done for the police.
The structure of Eurojust is rather similar to that of Europol. Eurojust, like Europol, is a
legal entity and, like Europol, it has its official seat in The Hague. Again, like Europol, it
consists of representatives sent by Member States. At a formal level, it is composed of
‘one national member seconded by each Member State in accordance with its legal
system, being a prosecutor, judge or police officer of equivalent competence.’35 The
resulting ‘college’ elects a President and Vice-Presidents.36 Eurojust has a permanent
staff, headed by an Administrative Director. Like Europol, it also has an external
Supervisory Body.
According to Article 85(1) of the TFEU,
Eurojust’s mission shall be to support and strengthen coordination and
cooperation between national investigating and prosecuting authorities in relation
to serious crime affecting two or more Member States or requiring a prosecution
on common bases, on the basis of operations conducted and information supplied
by the Member States’ authorities and by Europol.
- a set of objectives which are elaborated in greater detail by the 2002 Council Decision.37
In the pursuit of its objectives Eurojust, like Europol, has no power, as such, to require a
Member State to investigate a case or institute a prosecution, much less does it have the
power to do either of these things itself. By Article 6 of the Decision it has the power
‘ask’ a Member State to do either of these things, and indeed a range of other things as
well. Among these other things, Eurojust may ask a Member State to set up a joint
investigation team together with another Member State, and, in cases where two Member
States are both engaged in investigating or prosecuting the same person, it may also
invite one of them to ‘keep off the grass’ and leave it to the other. As when Europol
32
Council Decision 2008/976/JHA if 16 December 2008 on the European Judicial Network,
OJ L 348/130, 21.12.2008.
33
. Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treat on
European Union the Convention on Mutual Assistance in Criminal Matters between the Member
States of the European Union, (2000/C 197/01) OJ 12.7.2000.
34
Council Decision 2009/492/JHA of 16 December 2008 on strengthening Eurojust and
amending decision 2002/187/JHA, OJ L 138/14, 4.6.2009.
35
Eurojust Decision, article 2(1) (as amended).
36
At the time of writing the President is a Briton, Aled Jones.
37
Eurojust Decision, Article 3.
8
issues an invitation of this sort, where Eurojust asks a Member State to take a course of
action the Member State is at liberty to refuse. Though as when a Member State refuses
to accede to a request from Europol, it must give its reasons, unless to do so would ‘harm
essential national security interests or would jeopardise the safety of individuals’.38
If Eurojust’s powers are limited, its practical significance is considerable. As one
commentator puts it:
The improvement which the establishment of Eurojust has brought to
international co-operation is twofold. First, it provides practical assistance at
prosecutorial level for the transmission and execution of requests for international
assistance. Second, it creates a forum in which decisions on the best place for the
prosecution can be made. Eurojust does not have a formal competence to decide
upon matters of plural jurisdiction. However, the very fact that prosecutors with
expertise in the international co-operation of the relevant member States can take
up consultations on a specific case is de facto of enormous importance. The
permanent structure should be conducive to the prevention of jurisdictional
conflicts, and to multiple prosecutions and to ne bis in idem problems.39
The politics that lay behind the creation of Eurojust are closely connected with public
reaction to the Corpus Juris project, and in particular, to its central proposal for the
creation of a European Public Prosecutor. Though this idea was strongly supported by the
Commission, and by UCLAF (later OLAF), this ‘vertical solution’ to the problems of
trans-border crime, and to trans-border frauds on the Community budget in particular,
was strongly opposed by many Member States – in the forefront of the opponents being
the United Kingdom. To solve the current problems, whose existence the opposing
Member States did not deny, they came up with an alternative solution: a ‘horizontal’
solution the twin elements of which were ‘mutual recognition’ – of which more is said
below – and improved co-ordination between the prosecution services of the different
Member States, to which end Eurojust was rapidly created. But this solution was to some
extent a compromise, and like many compromises, meant different things to different
people. Whereas for some, Eurojust was the end of the process, for others it was a
beginning. Among those who supported the creation of Eurojust there were some who
hoped that, in time, it would grow from being a body that merely co-ordinates the efforts
of the prosecutors of the different Member States to become a body that actually does the
job itself: an independent European Public Prosecutor.40
When the Lisbon Treaty was drawn up this point of view prevailed, to the extent of the
inclusion in the Treaty of what is now Article 86 of the TFEU. This provides that, by a
decision that is unanimous, the Council ‘may establish a European Public Prosecutor’s
38
Under the 2002 Decision, Member States could also refuse to give reasons where to do so
would ‘jeopardise the success of investigations under way’, but this phrase was dropped from the
2008 revision.
39
Klip, op cit, note 2 above, 404.
40
See Mitsilegas, op cit, note 2 above, 188 et seq.
9
Office from Eurojust’; and it further provides that, where the Council is not unanimous, it
is open to a group of at least nine Member States to ‘go it alone’.
B. European instruments on ‘mutual recognition’
‘Mutual recognition’ is when the courts of two different legal systems recognise and
enforce each other’s rulings and decisions automatically, and without any examination of
the factual basis upon which they were made. It is the arrangement that has long existed
between the criminal courts of the different parts of the United Kingdom. But until
recently it was not at all the system that operated between the criminal courts of the EU
Member States. In the European context the basic principle was that the judges in
criminal courts did not normally recognise each other’s orders and decisions, although
they might sometimes do so exceptionally, and as a special favour. In those exceptional
cases where the criminal courts of one Member State might be able to invoke the help of
those of another to enforce its order, the procedure would typically involve the making of
a formal request, transmitted from court to court indirectly, via the two countries’
governments. The executive of the requested State would usually screen incoming
requests and, in some cases, might not allow them to proceed. Where the request did
eventually reach the court system of the requested State, the court would usually grant it
only where a number of conditions were met. Typically, these were two: first a ‘double
criminality’ requirement, i.e., a requirement that the behaviour should be criminally
punishable in the requested State as well as in the requesting State, and secondly a
requirement that the requesting State produce enough evidence to show a ‘prima facie
case’ justifying the measure asked for. And in some situations, the executive of the
requested State would then exercise a further control at what might be called the ‘output
stage’. This was so, in particular, with extradition in its traditional form, where the final
removal of the requested person required the consent of the executive of the requested
State – in the UK, the Home Secretary.41 All this tended to make the prosecution of transborder crimes where the wanted person, or the evidence, or some of it, was in another
Member State slow, costly and uncertain. It was in reaction to this problem that the team
that drafted Corpus Juris project proposed, for offences of budgetary fraud, the ‘vertical’
solution of a European Public Prosecutor, armed with powers that could be exercised in
any part of the territory of the European Union.
Not wishing to go down this route, the Member States, led by the UK,42 proposed ‘mutual
recognition’ as part of an alternative solution. First publicly floated, in outline only, at the
41
As is still the case in the UK where extradition is sought by States that are not part of the EU.
See the evidence of K Hoey, Under-Secretary of State at the Home Office, to the House of
Lords Select Committee on the European Communities: 9th Report, 1998-99 Session, Prosecuting
Fraud on the Communities’ Finances – the Corpus Juris, HL Paper 62, Appendix 4, §297: ‘The
simplest way of putting it is that we support cooperation between jurisdictions rather than
creating a single jurisdiction. Particularly as I come from Northern Ireland and Lord Hope is from
Scotland, a very good model for this cooperation is what we already have here, working between
the separate jurisdictions within the United Kingdom…’.
42
10
Cardiff Council in June 1998,43 it was then proclaimed with greater force at the Tampere
Council in October 1999. In section IV of the Presidency Conclusions it was stated that:
[35] … The European Council therefore endorses the principle of mutual
recognition which, in its view, should become the cornerstone of judicial cooperation in both civil and criminal matters within the Union. The principle
should apply to both judgments and to other decisions of judicial authorities…
The first concrete step in this direction was, of course, the European Arrest Warrant
(EAW), created by a Framework Decision adopted in the summer of 2002.44 This
replaced traditional extradition within the EU by a system under which, if certain basic
conditions are met, the transfer of the wanted person takes place automatically, without
the intervention of the executive, and within a stated set of time-limits. If the offence for
which the person is wanted is one of the 32 listed in Article 2(2) of the Framework
Decision, the traditional ‘dual criminality’ requirement is suppressed: the requested State
must hand the wanted person over, provided the offence carries at least three years’
imprisonment in the requesting State. If the offence is not on this ‘Framework Decision
list’ the EAW is still available if the offence carries a maximum penalty of at least 12
months, or (in the case of a convicted person) a sentence of at least four months has been
imposed; though here, the requested State may insist upon ‘dual criminality’. The
implementation date fixed by the Framework Decision was 31 December 2003: a date
which many Member States complied with, though for various reasons some were late.
The new measure eventually survived constitutional challenges in several Member
States45, and a further challenge before the ECJ.46
Presidency Conclusions, Cardiff 15 and 16 June 1998, §39, ‘The European Council underlines
the importance of effective judicial cooperation in the fight against cross-border crime. It
recognises the need to enhance the ability of national legal systems to work closely together and
asks the Council to identify the scope for greater mutual recognition of decision of each others’
courts.’.
44
Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the
Surrender Procedures Between Member States, (2002/584/JHA), OJ L.190/1, 18.7.2002. The
literature on the EAW is now substantial. See inter alia: S Allegre and M Leaf, The European
Arrest Warrant: a Solution Ahead of its Time? (London, Justice, 2003); R Blekxtoon and W van
Ballegolij, Handbook on the European Arrest Warrant (The Hague, T M C Asser Press, 2004); N
Keizer and E van Sliedregt (eds), The European Arrest Warrant in Practice (The Hague, T M C
Asser Press, 2009); J R Spencer, ‘The European Arrest Warrant,’ (2003-4) 7 Cambridge
Yearbook of European Legal Studies 201. For a review of the workings of the EAW in the UK,
see the House of Lords European Union Committee, 30th Report of Session 2005-06, European
Arrest Warrant – Recent Developments, HL Paper 156. For a critique of the UK implementing
legislation, see J R Spencer ‘Implementing the European Arrest Warrant: a Tale of How Not to
Do it’ (2009) 30 Statute Law Review 184.
45
The literature is substantial. For a succinct discussion, see Mitsilegas, op cit, note 2 above, 133138; and see the Special Issue (2008) 6(1) of I-CON (alias the International Journal of
Constitutional Law).
46
Case C-303/05 Advocaten voor de Wereld VZW v Leden van de Ministerraad ECR [2007] I3633.
43
11
Though widely criticised in the popular press (at least in the UK) as forcing our courts to
send Britons to face unfair trials for offences of which they are innocent, the governments
of the Member States (including ours) view the European Arrest Warrant as a big
success. And this has led to moves to create further ‘mutual recognition’ measures to
replace the existing leisurely and uncertain ‘mutual legal assistance’ regime47 that
currently applies when the courts of one Member State wish to obtain evidence from
another, or make other dispositions in the case ahead of trial. But once the political
pressure resulting from the attack on the World Trade Centre on 9 September 2001 had
died down, progress was much slower. In 2003 a Framework Decision was adopted that
sought to impose a ‘mutual recognition’ regime in respect of ‘freezing orders’.48
Eventually, after lengthy negotiations, in December 2008 a further Framework Decision
was adopted providing for a so-called ‘European Evidence Warrant’, which Member
States are required to implement by January 2011;49 but as the scope of this is limited, its
new ‘mutual recognition’ regime being applicable to some types of evidence but not
others, it is widely seen as half-measure of questionable utility. The restricted scope of
this instrument, and the generally slow progress in producing others, arose from an
underlying political difficulty: Framework Decisions required unanimity, which with 27
Member States had become hard to achieve. Once the Lisbon Treaty was in force, under
which the EU can now legislate in the area of criminal law by means of Directives,
adopted by a qualified majority vote, there were moves to replace this Framework
Decision with a new Directive creating a ‘European Investigation Order’, the scope of
which would be much wider. At the time of writing, a Draft Directive emanating from a
group of Member States, led by Belgium, is under discussion; and the UK government –
despite the protests of the eurosceptic press, which reported the proposal it is usual
alarmist terms50 – has decided to opt in.
Meanwhile there have been parallel moves to extend ‘mutual recognition’ to sentences –
so that the sentence imposed by a criminal court in one Member State will be
automatically recognised by the others, and in some cases may even be enforced in
another Member State. These began over ten years ago with a Convention on the mutual
recognition of driving disqualifications.51 After a substantial gap, this was followed by a
47
Within Europe, this is based on the European Convention on Mutual Assistance in Criminal
Matters of 20 April 1959, together with the EU Convention on Mutual Assistance in Criminal
Matters (Council Act of 29 May 2000, [2000]OJ C197/1).
48
Council Framework Decision 2003/577 JHA of 22 July 2003 on the execution in the European
Union or orders freezing property or evidence, OJ L 196/45, 2.8.2003.
49
Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence
warrant for the purpose of obtaining objects, documents and data for use in proceedings in
criminal matters, OJ L 350/72, 30.12.2008.
50
“Britons to be Spied on by Foreign Police” was the headline in the Daily Telegraph when
reporting, on 26 July 2010, that a UK opt-in was imminent. For a summary of the arguments for
and against, see J R Spencer, (2010) 6 Archbold Review 4.
51
Convention under then Article K.3 of the Treaty of European Union on Driving
Disqualifications ([1998] OJ C216, 10.7.1998 . By Article 15, this comes into force 90 days after
its ratification by the last of the States which were Members of the EU at the time of its adoption
by the Council – an event which has still not occurred (though a number of Member of States,
including the United Kingdom and the Republic of Ireland, have made reciprocal arrangements).
12
rapid series of Framework Decisions dealing with other types of sentence. In 2005 a
Framework Decision extended the principle of mutual recognition to ‘financial penalties’
– i.e. fines, so enabling a fine imposed by a court in one Member State to be enforced in
another.52 The following year a further Framework Decision did the same for
confiscation orders. 53 In 2008 two further Framework Decisions were adopted, one to
enable prison sentences to be enforced in other Member States54 and another to enable the
same to be done with probation orders and other ‘alternative sanctions’.55 And to round it
off, the same year produced a further Framework Decision requiring all Member States to
give, within their own systems, the same official status to previous convictions imposed
by the courts of other Member States as they give to previous criminal convictions
imposed by their own courts. 56
This ‘mutual recognition’ policy raises important issues which it is not possible to discuss
fully here, but which nevertheless should be mentioned. One is whether mutual
recognition, in its present form, is really workable. It was introduced, as everybody
knows, as an expedient to avoid ‘vertical solutions’, but the view has been expressed that
mutual recognition can only work when the laws of the countries concerned are broadly
similar; and thus to make it work properly some radical and centrally-directed
harmonisation will be required – which is one of the things that mutual recognition was
intended to avoid. Another big issue is whether the mutual recognition programme, taken
as a whole, is excessively authoritarian. Defence lawyers often say that it is unfairly
favourable to prosecutors. If by this they really mean that prosecutors can now secure the
conviction of guilty clients who would otherwise go free, then this is a matter for
rejoicing, not dismay. But if the criticism is that mutual recognition means that innocent
people are more likely to be convicted wrongly, then – if this is really so – it is obviously
worrying. A third big issue is whether the mutual recognition programme is actually
effective. Apart from the Framework Decision on the European Arrest Warrant, the
implementation of these instruments has been distinctly patchy and we are moving in the
area of ‘virtual law’. A fourth and final comment is how complicated this area of EU law
has now become. In the previous paragraphs no less than nine different EU legal
52
Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the
principle of mutual recognition to financial penalties, OJ L 76/16, 22.3.2005.
53
Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the
principle of mutual recognition to confiscation orders, OJ L 335/8, 11.11.2004.
54
Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the
principle of mutual recognition to judgments in criminal matters involving deprivation of liberty
(etc), OJ L 327/27, 5/.12.2008.
55
Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the
principle of mutual recognition to judgments and probation decisions (etc), OJ L 337/102,
16.12.2008.
56
Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions
in the Member States of the European Union in the course of new criminal proceedings, OJ L
220/32, 15.8.2008.
13
instruments have been examined. There is a strong case, surely, for pruning and
simplification.57
C. European instruments relating to substantive criminal law
The last 15 years have seen an explosive growth of European instruments requiring
Member States, if they have not already done so, to make various uniform adjustments to
their substantive criminal law. In every case, the obligation so imposed is to make a given
type of anti-social behaviour punishable; and typically but not invariably, further duties
are also imposed about the severity of punishment, the categories of person to whom the
law applies, and extra-territorial jurisdiction.
The range of matters covered by these instruments is wide and broadly speaking covers
all the matters which, in the last few years, have agitated public opinion in the Member
States to the point where the media are demanding action and the politicians are
promising to provide it. They include commercial fraud,58 corruption59 and moneylaundering;60 terrorism;61 organised crime;62 drug-trafficking;63 illegal immigration;64
people-trafficking;65 environmental pollution;66 computer hacking;67 child pornography
57
On these and other issues, see G Vernimmen-Van Tiggelen, L Surano and A Weyembergh
(eds) The future of mutual recognition in criminal matters in the European Union (Bruxels,
Editions de l’Université Libre de Bruxelles, 2009).
58
Council Framework Decision of 28 May 2001 combating fraud and counterfeiting of non-cash
means of payment, OJ L 149, 2.6.2001.
59
Council Act 97/C 195/01 of 26 May 1997 drawing up, on the basis of Article K.3 (2) (c) of the
Treaty on European Union, the Convention on the fight against corruption involving officials of
the European Communities or officials of Member States of the European Union, OJ C 195,
25.6.1997.
Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the
private sector , OJ L 192, 31.7.2003.
60
Directive 2005/60/EC of the European Parliament and the Council of 26 October 2005 on the
prevention of the use of the financial system for the purpose of money laundering and terrorist
financing, oj l 309, 25.11.2005.
61
Council Framework Decision of 13 June 2002 on combating terrorism,(2002/475/JHA), LJ L
164/3, 22.2.2002.
62
Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised
crime, OJ L 300/42, 11.11.2008.
63
Council Framework Decision 2004/757/JHA of 24 October 2004 laying down minimum
provisions on the constituent elements of criminal acts and penalties in the field of illicit drug
trafficking,, OJ L 335, 11.11.2004.
64
Council Framework Decision 2002/946/JHA of 28 November 2002 on illegal immigration etc,
OJ L 328, 5.12.2002;
Directive 2002/90/EC of 28 November 2002 on the same topic, OJ L 328, 5.12.2002.
65
Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in
human beings, OJ L 203, 1.8.2002
66
Directive 2005/35/EC of 7 September 2005 on ship-source pollution and on the introduction of
penalties for infringements (and amendments), OJ L 255, 30.9.2005,.
67
Council Framework Decision 2005/222/JHA of 24 February 2005 on attacks against
information systems, OJ L 69, 16.3.2005.
14
and paedophilia;68 and racism and xenophobia.69 In all those cases, the interests affected
by the behaviour in question are primarily those of the Member States; but instruments
have also been adopted in order to strike at behaviour which primarily threatens the
interests of Union itself – fraud against the Community budget,70 and counterfeiting the
Euro.71 The type of instrument used has varied according to the date and to the subjectmatter. In the pre-Lisbon era, ‘Third Pillar’ instruments were mainly used – Conventions,
and then after Amsterdam, Framework Decisions. But in some cases ‘First Pillar’
instruments were used, and occasionally both types were used simultaneously, as a sort of
legislative ‘belt and braces’. Post-Lisbon, the instrument of choice is likely to be the
Directive.
In every case, these instruments begin by defining a type of behaviour and requiring
Member States to make it criminally punishable. Very commonly, they continue by
requiring a ‘minimum maximum penalty’; the Framework Decision on organised crime,
for example, requires Member States to take the necessary measures to ensure that
involvement in a criminal organisation ‘is punishable by a maximum term of
imprisonment of between two and five years’.72 These instruments usually require
Member States to ensure that incitement and complicity are also punishable, and
invariably require Member States to ensure that criminal liability extends to ‘legal
persons’. (Corporate criminal liability, though ‘old hat’ to common lawyers, to
Continental lawyers is an exciting new development; and those responsible for drafting
EU instruments clearly see it as a panacea.) Finally, they usually also require Member
States to legislate so that the behaviour is punishable when committed on its national
territory, or by one of its nationals, or ‘or for the benefit of a legal person that has its head
office in the territory of that Member State’. (If corporate criminal liability shows of the
influence of the common law on Europe, these provisions about jurisdiction demonstrate
the opposite trend. The common law has traditionally assumed that criminal jurisdiction
should be based on territoriality alone, rejecting extensions such as ‘active
personality’.73)
68
Council Framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual
exploitation of children and child pornography, OJ L 13, 20.1.2004.
69
Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms
and expressions of racism and xenophobia by means of criminal law, OJ L 328/55, 6.12.2008.
70
Convention drawn up on the basis of Article K.3 of the Treaty of European Union, on the
protection of the European Communities’ financial interests, 26 July 1995, OJ C 316, 27.11.1995;
second Protocol thereto (1997) OJ C221/12, 19.7.1997.
71
Council Framework Decision of 29 May 2000 on increasing protection by criminal penalties
and other sanctions against counterfeiting in connection with the introduction of the euro, OJ L
140/1, 14.6.2000.
72
The Framework Decision also requires Member States to render punishable ‘conduct by any
person consisting of an agreement with one or more persons’ to commit any of a range of
criminal offences; and here, Member States must ensure a ‘minimum maximum penalty’ of
between two and five years, or the penalty applicable to the completed offence, whichever is the
greater.
73
In deference to the UK and the Republic of Ireland, the provisions in these instruments about
jurisdiction often permit Member States to decide that they will not apply the ‘active personality’
principle where the offence takes place outside their territory.
15
The most obvious point to make about this department of EU criminal law is that it is
uniformly repressive. The tendency of every one of these instruments is to extend the
scope of criminal liability, or increase the severity of punishment; we have yet to see a
European instrument that requires Member States to decriminalise behaviour, or to limit
the penalties applicable. But this has posed few problems at the political level for the UK,
where ‘criminal policy’ in recent years has been to extend the number of criminal
offences,74 and where already maximum penalties for offences are invariably far higher
than those these EU instruments require.
D. European instruments relating to criminal procedure
At present there is just one EU instrument that potentially requires Member States to
modify their criminal procedure, and this is the Framework Decision of 2001 on the
standing of victims in criminal proceedings.75 As previously mentioned, it was this
instrument that gave rise to the Pupino76 case. This instrument sets out a list of guarantees
that Member States undertake to provide for the victims of criminal offences. Under
Article 3, ‘Each Member State shall take appropriate measures to ensure that its
authorities question victims only insofar as necessary for the purpose of criminal
proceedings’. And under Article 8 (4),
Each Member State shall ensure that, where there is a need to protect victims –
particularly the most vulnerable – from the effects of giving evidence in open
court, victims may, by decision taken in open court, be entitled to testify in a
manner which will enable this objective to be achieved, by any appropriate means
compatible with its basic rights.
Mrs Pupino, a teacher at an infant school, was accused of acts of cruelty to children in her
care. As Italian criminal procedure then stood, for the children’s evidence to be received
it was necessary for them to attend the trial and give their evidence orally. This state of
affairs was inconsistent with obligations imposed by- the Framework Decision.77
Though this is the only instrument of this sort that currently exists, others are under
serious discussion.
Of these, one is a proposal for an instrument requiring the criminal courts of all the
Member States to treat as admissible evidence any material gathered in another Member
74
It is widely said that, in the ten years after the General Election in 1997, at least 3,000 new
criminal offences were created. On this, see J R Spencer, ‘The Drafting of Criminal Legislation:
Need it be so Impenetrable?’ [2008] Vol. 67 Cambridge Law Journal 585, 587.
75
2001/220/JHA, oj l 82/1, 22.3.2001.
76
Case C-105/3 Criminal Proceedings Against Pupino Case, C-105/03, [2005] ECR I-5285,
[2006] QB 83 noted [2005] Vol. 64 Cambridge Law Journal 569.
77
It is questionable whether the UK has complied with the Framework Decision, because at
present English law would require a child witness to undergo a live cross-examination at the trial
if the defendant pleaded not guilty.
16
State, provided that the laws of that Member State were respected when the evidence was
collected. The background to this proposal is the previously-mentioned difficulty that
OLAF sometimes has in persuading the authorities of Member States to take action on its
reports. One of the recurrent reasons Member States refuse to prosecute, it seems, is that
the evidence OLAF provides was not gathered according to the procedures laid down for
the collection of such evidence in their own criminal procedure codes – even though it
was lawfully collected according to the rules of the Member State where it was gathered.
To deal with this, a proposal for the ‘free movement of evidence’ was put forward at
Tampere in 1999. 78 Three years later it surfaced again in a Commission Green Paper,79
and again in another Commission Green Paper in 2009.80
What exactly is meant by this proposal is not clear. On a narrow interpretation, it merely
means that where local formalities for evidence-gathering were complied with, the
resulting evidence should not be rejected by the courts of another Member State merely
because, had the evidence been gathered there, different formalities would have been
required. This ‘locus regit actum’ rule is a sensible one which already prevails in a
number of Member States, including (it seems) the United Kingdom,81 and to generalise
it would not be revolutionary. But on a wider reading, it could mean that any piece of
evidence gathered lawfully in one Member State becomes automatically admissible in
criminal proceedings in another Member State, irrespective of any rule of evidence that
would otherwise exclude it, and whether that rule is concerned with formalities or based
on some broader principle. On this interpretation, a written statement lawfully taken from
a witness in State A, where written statements of absent witnesses are generally
admissible in substitution for their oral testimony, would be automatically admissible in
State B, under the law of which written statements from absent witnesses are generally
excluded and oral evidence is normally required. The implications of this are worrying, to
put it mildly.82
Another is a proposal – or to be more exact, a series of proposals – to ensure that all
Member States introduce measures to secure certain minimum safeguards for defendants.
Tampere Presidency Conclusions, §36. ‘evidence lawfully gathered by one Member State’s
authorities should be admissible before the courts of other Member States, taking account of the
standards that apply there.’
79
Green Paper on Criminal Law Protection of the Financial Interests of the Community and the
Establishment of a European Public Prosecutor, COM(2001) 715 final, 11 December 2001.
§6.3.4.1.
80
Green Paper on obtaining evidence in criminal matters from one Member State to another and
securing its admissibility, COM (2009) 624 final. (Though part of the Commission’s original
proposal for a European Investigation Order, ‘free movement of evidence’ does not form part of
the Draft Directive that is currently under discussion: see note 51 above).
81
R v McNab [2001] EWCA Crim 1605, [2002] 1 Cr App R (S) 72, [2002] Criminal Law Review
129.
82
On this, see J R Spencer, ‘The Problems of Trans-border Evidence and European Initiatives to
Resolve Them’, (2006-2007) 9 Cambridge Yearbook of European Legal Studies, 465, 473 et seq.
78
17
Moves in this direction began in 2003,83 shortly after the creation of the European Arrest
Warrant. Their overt justification was the need to build the ‘mutual trust’ that is
necessary for the proper functioning of ‘mutual recognition’. The courts in Member
States whose criminal procedure provides proper safeguards against the mistreatment of
suspects and defendants, and against the risk of wrongfully convicting the innocent, will
(so it is said) be unwilling to execute European Arrest Warrants, and other ‘mutual
recognition’ instruments, if they suspect that these safeguards are missing in the Member
State whose order they are expected to enforce. But, as suggested earlier in this chapter,
in the background also lay another and more fundamental reason: the notion that, in an
‘area of freedom, justice and security’, all citizens deserve a criminal justice system that
is civilised, and in which certain basic safeguards are guaranteed.
In 2006, progress towards a new Framework Decision on Defence Rights was abruptly
halted when, to its shame, the British government, initially in favour, used its political
muscle to block it. For this change of mind no coherent reason was ever given. 84 But the
reason was probably that the government had just published a White Paper announcing
its intention of ‘Rebalancing the criminal justice system in favour of the law-abiding
majority’85, which it feared would lose its impact with the electorate if it appeared
alongside headlines saying ‘Brussels Forces UK to Give Criminals Yet More Human
Rights.’ By the autumn of 2009 the British government had changed its mind again, and
it was actively backing new moves from the Commission towards EU instruments
guaranteeing rights for criminal defendants.
These new moves consist of a ‘Roadmap’ of intended future measures designed to
safeguard the position of suspects and defendants during the police investigation and
preliminary stages of a prosecution, which was approved by the Council in a Resolution
on 30 November 2009.86 These proposed new measures concern (a) provision of
adequate interpretation and translation, (b) information to suspects about their legal
rights, (c) legal aid and advice, (d) a right for persons detained to communicate with
relatives, employers and consular authorities, (e) special safeguards for suspected or
accused persons who are vulnerable and – eventually – (f) a Green Paper on pre-trial
detention. At the time this chapter is written, the Commission is working on all of these,
and an instrument designed to give effect to ‘measure (a)’ – interpretation and translation
– is already in the legislative pipeline, in the form of a Draft Directive, 87 which looks set
to be adopted shortly.
Green Paper from the Commission – Procedural Safeguards for Suspects and Defendants in
Criminal Proceedings throughout the European Union COM(2003)75 final, 19 February 2003;
followed by a Proposal for a Council Framework Decision on Certain Procedural Rights in
Criminal Proceedings throughout the European Union, COM (2004) 328, 28 April 2004; S Alegre
‘‘EU Fair Trial Rights – Added Value or No Value?’’ [2004] New Law Journal 758-9.
84
See generally the House of Lords European Union Committee, 2nd Report of 2006-7 Breaking
the Deadlock: What Future for EU Procedural Rights? HL Paper 20.
85
Home Office, July 2006.
86
OJ C 295/1, 4.12.2009.
87
It was adopted, as Text P7_TA(2010)0220, by the European Parliament on 16 June 2010. The
Council, having already agreed the text, is expected to formally adopt it in the autumn of 2010.
83
18
EU CRIMINAL LAW – WHAT WILL IT BECOME?
As all reader will be well aware, the Lisbon Treaty has radically changed the previous
constitutional arrangements for the making of what was earlier described as ‘positive EU
criminal law’.
First, gone is the ‘Third Pillar’, the special system under which legislation in the area of
criminal justice was made by the Council using a special set of instruments (in particular,
Framework Decisions), which could only be adopted by unanimity; and instead, the EU
now legislates in criminal justice matters by the same processes, and using the same
instruments, as it does for everything else. The instruments are now Regulations,
Directives, Decisions, Recommendations and Opinions. The legislative process now
involves the European Parliament, but no longer requires, as it used to, unanimity in the
Council from all Member States. If push comes to shove, the legislation may proceed by
a qualified majority vote; though to compensate for loss of their veto, the UK and the
Republic of Ireland managed to negotiate set of ‘opt outs’ of labyrinthine complexity.88
Furthermore, in future, EU criminal law measures, like all other EU measures, will be
subject to full ‘judicial control’, including enforcement proceedings against recalcitrant
Member States which fail to implement them.
Secondly, the powers of the EU to legislate in criminal justice matters have been restated
by new provisions which are, fortunately, rather clearer than the arcane provisions of the
TEU which they replace.
Article 82 TFEU deals (in effect) with criminal procedure. Having proclaimed the
principle of ‘mutual recognition’, it provides that, to the furtherance of this end, the EU
may (inter alia) ‘lay down rules and procedures for ensuring recognition throughout the
Union of all forms of judgments and judicial decisions’, and further provides that, ‘to the
extent necessary to facilitate mutual recognition’, it may also ‘establish minimum rules’
in relation to a number of criminal procedure matters: ‘mutual admissibility of evidence
between Member States’, ‘the rights of individuals in criminal procedure’, ‘the rights of
victims of crime’, and ‘any other specific aspects of criminal procedure’ which the
Council has agreed upon by unanimity, with the consent of the European Parliament.
Article 83 TFEU deals (in effect) with substantive criminal law. It provides that the
European Parliament and the Council may enact Directives establishing ‘minimum rules
concerning the definition of criminal offences and sanctions in the areas of particularly
serious crime with a cross-border dimension resulting from the nature or impact of such
offences or from a special need to combat them on a common basis’. ‘Particularly serious
crime’ is defined as ‘terrorism, trafficking in human beings and sexual exploitation of
women and children, illicit drug trafficking, illicit arms trafficking, money laundering,
corruption, counterfeiting of means of payment, computer crime and organised crime’,
On this see S Peers, ‘In a World of Their Own? Justice and Home Affairs Opt-Outs and the
Treaty of Lisbon’, (2007-2008) 10 Cambridge Yearbook of European Legal Studies, 383.
88
19
plus other types of crime in future determined by the Council, acting unanimously and
with the consent of the European Parliament. In addition the EU may also adopt
Directives defining crimes and prescribing punishments where ‘the approximation of
criminal laws and regulations of the Member States proves essential to ensure the
effective implementation of a Union policy in an area which has been subject to
harmonisation measures’.
As regards the impact of all this on the United Kingdom, public attention has mainly
focussed on wide powers the UK has secured to ‘opt out’ of those measures it does not
like.89 But no less important, I believe, is the fact that, where the UK has ‘opted in’ to a
new measure, the government now has much wider powers than previously to implement
it by using secondary legislation. Previously, where the implementation of a ‘Third Pillar’
measure required a change in the law, primary legislation would usually be necessary.
But the European Union (Amendment) Act 2008 has extended the scope of section 2(2)
of the European Communities Act 1972, which previously allowed the government to
implement ‘First Pillar’ measures by means of secondary legislation, so that in future all
‘EU obligations’ can be implemented by this method, including those in the area of
criminal law. As before, this power cannot be used so as to create new criminal offences
that are punishable with more than two years’ imprisonment;90 but at least in theory,
secondary legislation could now be used to implement EU measures requiring
rearrangements of criminal procedure, however radical they might be.
So against this background, what will be the ‘big issues’ in the future? There could be
many, but here I propose to close this chapter by briefly mentioning only two.
The first is ‘what will be the future shape of EU criminal law? Vertical, or horizontal?’
As we have seen, this tension between these two rival models is already present. It is
evident in the institutions: of the three EU organisations that exist to handle criminal law,
one of them – OLAF – is ‘vertical’, carrying out is own investigations into EU fraud, and
the other two – Europol and Eurojust – are ‘horizontal’, their essential tasks being to coordinate the crime-fighting efforts of the national authorities in the Member States.
Thirteen years ago, the Corpus Juris project produced a blue-print for a ‘vertical’ future,
in the form of a European Public Prosecutor, albeit within the limited area of budgetary
fraud, who would enforce a single, unified code of criminal offences by using a single,
unified code of criminal procedure. As already mentioned, this solution did not please the
Member States, which reacted by producing a rival ‘horizontal’ solution – mutual
recognition and improved co-ordination through Eurojust – as a means to solve the
problems of trans-border crime. The tension, though temporarily buried, is present in the
criminal justice articles of the TFEU. Article 82, as we have seen, proclaims the principle
of mutual recognition. But Article 86 provides a mechanism by which, in the future, a
89
In particular by Protocol 21; on this, see Peers, previous note.
Schedule 2 of the European Communities Act 1972 still precludes the use of this method ‘to
create any new criminal offence punishable with imprisonment for more than two years or
punishable on summary conviction with imprisonment for more than three months or with a fine
of more than level 5 on the standard scale (if not calculated on a daily basis) or with a fine of
more than £100 a day.’
90
20
European Public Prosecutor could evolve from Eurojust; and there is pressure from
within the Commission, and OLAF, to see that it eventually does. In the next few years,
we shall see whether, with a Union of 27 Member States and others keen to join, coordination between national police and prosecuting authorities plus mutual recognition of
decisions can really cope with the issues of budgetary fraud and trans-border crime.
The second big issue, I believe, is whether the EU can secure a decent deal for suspects
and defendants in those Member States where it seems that present arrangements are
seriously deficient. Every criminal justice system makes occasional mistakes, and our
own (alas) is no exception. But, regrettably, there are strong reasons to believe that the
criminal justice systems of some Member States have problems that are systematic. In a
press communication launching its ‘Justice in Europe’ campaign, Fair Trials International
– a serious organisation – said this:
Sadly, our own casework repeatedly demonstrates the human cost of existing
cooperation measures. Under the European Arrest Warrant, for example, people
from all across Europe are being sent to other EU Member States for the most
minor offences, or to serve prison sentences imposed after unfair trials … we also
have compelling evidence of the need to improve fair trial rights across the Union.
Some of the English case-law relating to the European Arrest Warrant reinforces this
disquieting impression.91
That the will exists to do this is shown by the adoption of the ‘Roadmap’ that was
described earlier. But unfortunately, is not entirely clear that the EU has the legislative
powers to see that its good intentions are carried through. As we have seen, Article 82 of
the TFEU subordinates the competence of EU to legislate in the area of criminal
procedure to the need to promote ‘mutual recognition’; the EU has no power, as such, to
pass legislation requiring Member States to clean up their systems of criminal procedure,
just because their current state of hygiene is questionable. There is an obvious difficulty
about trying to gear an improvement in the position of suspects and defendants to the
enhancement of mutual recognition, and this is the essential nature of mutual recognition;
which is ‘We’ll enforce your courts orders without asking awkward questions, provided
you will do the same for ours.’ 92
91
A telling example is R (Mann) v Westminster Magistrates Court and another, [2010] EWHC
48 (Admin), where it seems clear that at the applicant’s trial in Portugal he was denied adequate
interpretation and the legal advice he received was grossly incompetent; and, alas, the blunders of
his Portuguese defence lawyers were then matched by those of the lawyers who initially
represented him in England.
92
It is possible that, in future, the courts of the Member States may blunt the harsher effects of
mutual recognition by invoking the provisions of the EU Charter of Fundamental Rights: for
example, art.49(3), which provides that “[t]he severity of penalties must not be disproportionate
to the criminal offence”. However, the courts in the UK will be in a relatively weak position to do
this, because the UK, together with Poland, extracted from the Lisbon negotiations a concession
in the form of Protocol 30, which limits the effect of the Charter in those countries. On this, see J.
Vogel and J.R. Spencer, “Proportionality and the European Arrest Warrant”, [2010] Criminal
Law Review 474.
21
The ‘vertical solution’ of a single European Public Prosecutor, using everywhere a single
set of European rules, has been widely attacked, at any rate in the UK, as potentially
authoritarian – often in language that is extraordinarily violent.93 But paradoxically, it
could provide better safeguards for defendants than the horizontal solution of mutual
recognition, ‘You scratch our national prosecutor’s back, and we’ll do the same for
yours.’
Typical is a letter published in the Daily Telegraph on 10 February 2010: ‘The EPP would not
be like our own Director of Public Prosecutions, but more like a chief of police with the powers
of a judge. Uniformed police would execute his commands and have frightening powers such as
ordering house searches (the dreaded knock on the door in the small hours). He could also order
the arrest, interrogation and imprisonment of suspects (for months at a time, with no public
hearing). … The establishment of an EPP will surely be the prelude to the imposition of Corpus
Juris, a common criminal and judicial system for the EU, because, to enable him to function, the
EPP will need such a set of rules. Corpus Juris adopts the Napoleonic (inquisitorial) method, and
sweeps away our British system with all its inbuilt safeguards against coercion, such as habeas
corpus and trial by jury. To ensure that the EU's writ runs throughout its vassal states, the
European Gendarmerie Force (EGF) will doubtless be deployed. Once this trio of the EPP,
Corpus Juris and the gendarmerie is in place, EU supremacy will be complete…’
93
22