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 case-by-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 JurisIntroducing 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 onthe 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