Is EU Criminal Law a Threat to British Justice?

A depressing thing is the rubbish you see
in the newspapers about Europe and the European Union: “Euromyths”, stories that are gross
distortions of the truth or even wholly false. Ones I have seen include that EU law now forbids
the owners of dead pets to bury them unless they pressure-cook them first; that Brussels
now requires every fishing boat to carry a minimum stock of 200 condoms so that the fishermen
can have safe sex when they are not engaged in catching fish; that Brussels has a plan
that, instead of burying our dead, we’ll have to liquefy their corpses and pour them
down the drain. Some Euromyths are about justice. A favourite
one is about criminal justice, that the European countries have something terrible called the
“inquisitorial system”, invented by the Pope and Napoleon, under which everyone is
presumed guilty instead of innocent, courts are controlled by public prosecutors, and
public prosecutors can have you arrested at any time and held in prison indefinitely without
trial. And if we don’t leave Europe, Brussels is going to make us have that system here. Nigel Farage, the leader of the UK Independence
Party, regurgitated this one in a piece in The Independent just before Remembrance Day.
It provoked a lot of online comment. One of them, from an approving reader said, “Point
out what Farage has written that’s wrong. You can’t, can you?” Well, as a Cambridge
law professor who’s worked on European criminal justice for the last 20 years and written
books about it, I think I can and I’m going to try. Nigel Farage’s piece has so many muddles
and confusions in it that I hardly know where to start but let’s get going with a headline:
“Innocent until proven guilty? Not under the EU’s justice system. Corpus Juris, used
in Europe, is not a system of justice we should be welcoming.” The Corpus Juris he refers
to isn’t used in Europe; it isn’t used anywhere. It’s a proposal written by a group
of academics for a scheme to combat fraud on European community finances, which was
published back in 1997. What was proposed was a standard list of fraud
offences to be applicable in all member states, a standard list of powers for investigating
them, and a European public prosecutor, a bit like our Serious Fraud Office, with authority
throughout Europe to investigate and prosecute. The Corpus Juris proposal was demonised as
a Brussels plot to force us to have the inquisitorial system by The Daily Telegraph in an issue
in 1999, and this view of the matter was then internalised by Eurosceptics. I’m afraid
the journalist who wrote it had never looked at the Corpus Juris project and he got his
take on it from a travesty of it that had appeared in a small circulation Eurosceptic
magazine. Unlike the journalist and Nigel Farage, I do know what is in it. It contains
nothing about suspects being presumed guilty as in continental Europe. I know this because
I was part of the team of academics that helped write it. And we might like to look at Article
31, which says, “Any person accused of one of the offences set out above is presumed
innocent until his guilt has been established legally by a final judgment which has acquired
the authority of res judicata”. Secondly, Farage is wrong to imagine that
in criminal justice systems in continental Europe the presumption of innocence, which
is so highly valued, quite rightly, in the UK, is reversed so that everybody is presumed
guilty. Here’s the preliminary article to the French code de procédure pénale: “Toute
personne suspectée ou poursuivie est présumée innocente tant que sa culpabilité n’a pas
été établie.” And here is an article of the Italian constitution: “L’imputato
non è considerato colpevole sino alla condanna definitiva.” Actually, in Italy they take
that very seriously indeed, to the point of saying that jail sentences can’t be carried
out against people until all their last rights of appeal have been finished. And that is
the reason why Mr Berlusconi is still at liberty in Italy now, even though a four-year jail
sentence has been, theoretically, imposed upon him. And the presumption of innocence
is enshrined throughout Europe by the European Convention on Human Rights, another hate object
to Eurosceptics, Article 6.2 of which says, “Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.” The third point I would like to take up is
where Farage says that “the criminal justice systems in Europe were invented by the Holy
Inquisition in Rome” and that “the system of combining the prosecutor and judge is something
which formed the basis of the legal system in Europe” and he says they are no longer
the same person but are now instead “salaried civil servants working cheek by jowl.” This
is completely wrong. Judges in continental Europe aren’t civil servants dependent on
the government. They are independent, both of public prosecutors and the government,
like they are in the UK. And they have to be so because Article 6 of the European Convention
on Human Rights again requires this and Strasbourg would condemn the countries concerned if they
were not. In some countries judges and public prosecutors train together and can even move
from one job to the other in the course of their career, but while they are judges, they
are judges and they act independently. France, it’s true, has a figure called the
“juge d’instruction”, an investigating judge, who in serious cases will take charge
of the investigation. But the juge d’instruction doesn’t take part in the final decision on
guilt or innocence, which is made by an independent court, and the juge d’instruction doesn’t
take orders from the public prosecutor. Actually, juges d’instruction, thanks to their independence,
have an honourable history of sorting out corrupt politicians which is why some dodgy
politicians would be very keen to abolish them. The fourth point I’d like to take up is
when Nigel Farage says the EU wants us to introduce a system under which British citizens
could be locked up indefinitely without charge or trial. I don’t know where he got that
idea from; it certainly isn’t in the Corpus Juris project. Under the Corpus Juris project,
the European public prosecutor would have had the right to request the court to remand
a person in custody for up to six months, extensible by a further three, and the court
would have been able to grant this if satisfied that, “Good reasons exist for believing
it necessary to stop him from committing such an offence or from fleeing after committing
it”, and before making such an order the judge would have to be satisfied “that the
measure is lawful and regular as well as that the principles of necessity and proportionality
are respected.” To further make the point about EU criminal
justice meaning people would be locked up indefinitely without trial, Farage mentions
the case of Andrew Symeou. The Symeou case is indeed very distressing and the facts,
as many of you will know, were that he was suspected by the Greek authorities of a manslaughter
and was handed over under a European arrest warrant, where he was kept in Greece for two
years before the Greek criminal justice system got around to actually trying him – and
at the end he was acquitted. What was wrong in that case, to my mind, wasn’t that the
Greek authorities wanted to try him for manslaughter, for which there was reason to suspect him
initially, nor that the British government handed him over under a European arrest warrant,
it was that the Greek criminal justice system managed to take two years to deal with him
and for one of those years held him in prison when there was no reason to hold him in prison
at all. That was nothing to do with the Corpus Juris, or with EU criminal justice, or to
do with the European arrest warrant, because it could have happened under the existing
extradition arrangements previously in force in Europe. It’s a fault with some continental criminal
justice systems that they are slow and they are over-inclined to hold people in prison
pending trial. And the EU, insofar as the EU is involved in this, is worried about it
and has been trying to do something about it. Indeed, several years ago it published
this green paper floating the idea of EU legislation to require all member states to limit the
periods of pre-trial detention. And I regret to say that the official response of the British
government to this was, “Keep out. We don’t think this is an appropriate topic for EU
legislation.” I think this is a shame. There’s one sentence in Nigel Farage’s piece with
which I wholeheartedly agree which is where he says, “Our traditions of habeus corpus
should be held up as a beacon of fairness.” So indeed they should, and instead of shrinking
away from the efforts of the EU in matters of criminal justice for fear of contamination,
as seems to be the policy of our current government to do, we should be right in there, trying
to see that the better features of our system are made general throughout Europe. But before we do that, we should be cautious.
We should remember what it says in the Bible: “Cast out first the beam that is in thine
own eye; and then shalt thou see clearly to pull out the mote that is in thy brother’s
eye”. A Swedish colleague of mine, who is involved in European criminal justice, said
to me one day, “When your compatriots start talking to me about the superiority of the
common law, I silence them with two words: ‘Birmingham Six.’” You may have been watching, like me, that
Danish series, Borgen. There was one number when there was a tabloid newspaper editor
who was offered a piece by a serious journalist about the European Union and he rejected it.
“Don’t try to give me a story about the EU”, he said, “It’s not sexy and it’s
too complicated for our readers to understand.” That’s part of the trouble. It is complicated
and because it’s complicated there’s all the more reason why journalists and politicians
should look carefully into the facts before they sound off about them. And we should all
understand that nonsense about the EU doesn’t cease to be nonsense because it’s written
by an established politician or printed in a reputable newspaper.

10 Responses

  1. dave jones says:

    A fair take-down of a poorly researched argument, one that Nigel Farage should have known better than to touch.

    Although Prof Spencer is uniquely well placed to comment on this case, it would be more interesting to hear a Cambridge law professor take aim at higher targets.

    For instance, two senior judges in the UK have recently written articles criticising European courts for encroaching on affairs that are beyond their remit. 

    Is there a tendency for the EU judges to overstep the mark? And if those responsibilities were repatriated, why would we expect a domestic court rule more cautiously?

  2. Billy Q says:

    The answer to this question is yes

  3. karl johan says:

    title answer yes

  4. Kernal Scott 2 says:

    4.01. "It says nothing about suspects being guilty until proven innocent AS IN CONTINENTAL EUROPE". Truth always slips out. I can almost see the smoke rising from this man's pants. I will be voting to leave the EU no matter what.

  5. Phil Brickell says:

    Nicely done Prof. Spencer!

  6. Simon John says:

    How long before EU Corpus Juris encompasses all areas of criminal law, not just fraud? The bigger picture is that the EU starts small, but then grows like a cancer to take the whole body. It goes for the soft unimportant areas first then branches out into other areas.
    We have Habeas Corpus in the UK where if you are charged you must by law know what you are being charged with and see a judge within 24 hours to know how you plead, if they don't charge you, you must be released. The evidence to charge must also be able to stand up in a court of law (prima facie) and the defendant must know what that evidence is. No arbitrary arrest by the state without a warrant (Magna Carta). I am very happy to keep UK justice (UK Constitutional law), not settle for an inferior legal justice system in the EU or Europe.

    Voting to leave the EU on June 23rd.

  7. TheAccountant says: Jean-Claude Junker (an EU President) 5May16 said ELECTED leaders spend too much time 'kowtowing' to public opinion rather than working on EU projects. Interestingly, Remain don’t mention Democracy as a reason to stay, which is understandable as the one-person-one-vote does not apply to the EU Executive… we can remove MEPs through the ballot box but not the EU Executive.

    … and those saying NATO will be weakened if the UK leaves the EU are ignoring the fact that there are many NATO members who are not in the EU (Canada, USA, Turkey etc)

  8. HeavensGremlin says:

    Corpus Juris is emblematic of how the EU works. The EU is unelected, undemocratic and anti-free speech – run by politicians who are not only unelected – but who cannot be sacked by the voters. Time to vote OUT, to LEAVE the rotten, stinking corrupt EU.

  9. Bertha Yellowfinch says:

    Anything that is a threat to that sleezy BRITISH dope running — threatens the basic values of that human garbage. Filthy scum.

  10. Joe Marks says:

    Sounds like it's the same over there as in the U.S. where the rich get sprung and the poor get hung. Most of our crime spawns from poor legislation, but primarily the nonsensical war on drugs. The joke is on us too since research is showing psychedelics are healthier than alcohol or pharmaceutical medications. If Congress had implement Milton Friedman's negative income tax generations ago we could have saved a ton of money.

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