European Criminal Law:What’s New for 2015?

Professor John SpencerPresident

2 March 2015, 4.30-6.00

EU criminal law grew under the Maastrich regime to cover:

• New agencies• Police co-operation measures• Mutual recognition• Harmonising criminal law• Harmonising criminal procedure

Maastricht measures (cont.)

• Adopted by unanimity• No enforcement through the courts; only

“extra-legal pressure”

After Lisbon: the new deal• 82 TFEU “approximation” of criminal

procedure, so far as “necessary to facilitate mutual recognition”

• 83 TFEU “approximation” of substantive criminal law on a range of specified topics, to which the Council can add, by unanimous decision.

• QMV – farewell to the veto• ECJ/ CJEU has power to interpret and enforce

Lisbon Treaty: UK opt-outs

• Protocol 21: “No new EU justice measures apply to us unless we decide to opt into them”

• Protocol 36, article 10, clause 4: “We can pull out of all the remaining Maastricht measures ahead of the CJEU getting power to make us implement them”

The Protocol 36 saga, 2012-2014

• Final outcome: in July 2013 the UK exercises the opt-out, and (after many arguments, and amendments to Part I of the Extradition Act 2003) then opts back into all the significant measures in December 2014.

• The value of the exercise? Compare assessments from David Cameron and from Yvette Cooper (shadow Home Secretary) – see next two slides.

• “The prime minister said the UK had already agreed to opt out of 100 other EU justice provisions, which he said amounted to the biggest single transfer of powers back from Brussels to the UK.” [dubious!]

• "I would stress to those who are concerned about this, the European Arrest Warrant is very different from the arrest warrant first introduced under the last Labour government. You cannot now be extradited for something that isn't a crime in Britain …” [wrong!]

• “… judges are able to reject European Arrest Warrants [they always could] and they have done so in many, many cases. [wrong: the great majority are executed]”

• "And you can't be extradited if there is going to be a long period of detention…” [partly true, but alas, not wholly]

• [Yvette Cooper] “… We have the power not to do a whole series of things we plan to carry on doing anyway, the power not to follow guidance we already follow, the power not to take action we already take, the power not to meet standards we already meet, the power not to do things that everyone else has already stopped doing and the power not to do a whole series of things we want to do anyway.”

The “Magic 35”; the list includes:

• Agencies: Europol, Eurojust, EJN, SIS• Police co-operation: Naples II, “Swedish FWD”, JITs, ECRIS,

Schengen• Mutual recognition: **EAW**, supervision order

(alias“Eurobail”), fines, jail, confiscation orders;[but not probation]

• Harmonising criminal law: child porn (only); all the rest are dropped – including e.g. the FWD on terrorism (!)

• Harmonising criminal procedure: Schengen art. 54; equal weight to convictions imposed in other EU Member States

A hasty catch-up …

• European Supervision Order? (implemented by secondary legislation in December 2014)

• European Protection Order? (implemented by secondary legislation in January 2015)

Protocol 21 (reminder)

• Protocol 21 – out of all new JHA measures, unless we opt in, within three months of the balloon going up

Coalition policy: “what’s in it for us?”

Current UK policy in a picture

• Instead of opting in at the outset, a recurrent tactic is to decline to opt in at the outset, but to take part in the negotiations, indicating that we might join if we are happy with all of it; which often gives the UK more leverage than opting in (with the risk of then being outvoted).

• For a review of decisions taken during 2014, and decisions coming up, see the MOJ/Home Office Fifth Annual Report to Parliament on the Applications of Protocols 19 and 21 (Cmnd 9006, February 2015).

What EU criminal law consists of(reminder):

• New agencies• Police co-operation measures• Mutual recognition• Harmonising criminal law• Harmonising criminal procedure

New agencies: the EPPsome recent documents

• HL European Union Committee, 4th Report of 2014-15: “The impact of the European Public Prosecutor’s Office on the United Kingdom”, 3 November 2014

• EU Council – Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s office – Report on the State of Play, Brussels, 18 December 2014, 16993/14

Police co-operation measuresSee this

Mutual recognition measures

• European Investigation Order – adopted at last!

• Directive 2014/41EU, of 3 April 2014• To be implemented by 22 May 2017

Harmonising criminal law: recent decisions

• Draft Directive on Euro-Frauds• playing hard to get• Draft Directive on harmonising penalties for

Customs Infringements• opted in• Draft Directive on Drug-Trafficking• opted out

Harmonising criminal procedureDefence Rights: 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 (just!)• Legal advice and communication: • Joined in discussions, got our way, but then

refused to join …”• Green Paper on Pre-trial Detention? Governmental

response: “not a case for EU legislation”• Proposals for Directives on Juvenile Suspects, Legal Aid and the

Presumption of Innocence• Refusal to opt in; though we might eventually join

the one on juvenile suspects

Conclusion

• Under the previous government, the UK’s policy was consistent: “together for repression”

• Under the Coalition the UK’s policy seems incoherent; much public complaining about the quality of justice in other Member States, but blowing hot and cold on EU attempts at raising standards.