The changing face of criminal justice

Date: 27.01.05

Initiatives over the past few years suggest such a step is inevitable - perhaps within a decade. Top officials at the European Commission have this month agreed a plan to introduce minimum sentences across the Union for those convicted of directing an organised crime gang. The European arrest warrant scheme is up and running. And among the dossiers under discussion at the Council of Ministers is one to introduce common procedural rights - for example, during the interrogation of suspects - in criminal proceedings.

Luxembourg's federalist government, the current holder of the EU's presidency, appears to consider a criminal code as desirable. Luc Frieden, the Grand Duchy's justice minister, last week expressed regret that the draft EU constitution does not make clear "how far we can go" in co-operation on tackling crime. "Why not have dared to propose a European criminal code for serious cross-border crimes?" he asked, addressing the Academy of European Law in Trier, Germany.

On the other side of the debate, some of the UK's newspapers consider a criminal code a fait accompli, albeit an unwelcome one. In a June 2004 editorial the Daily Telegraph described signing the Union's constitution as the "greatest blunder" of Tony Blair's premiership, arguing that it is "the capstone of a federal state and gives the EU a foreign minister, a criminal code, a European prosecutor and a police force".

Blair has rebutted that view, maintaining that he has never come under pressure from other European leaders to sacrifice the fundamental principles of British criminal justice for the sake of harmonisation.

But the Conservative opposition has warned that the European arrest warrant is a "first step" towards a criminal code, under which the rights of those apprehended are drawn up in Brussels, rather than London.

It is hard to read such claims without a sense of déjà vu.

For in the late 1990s, the aforementioned Daily Telegraph led a campaign against the so-called Corpus Juris blueprint. This was drawn up following a 1997 seminar that the EU executive held in San Sebastián, Spain, on protecting the Union's finances from looting by criminals. Calls were made at the meeting for a European public prosecutor to deal with offences against the EU's budget and for the introduction of a "single legal area" in the Union.

The project infuriated Eurosceptics in the UK. Some interpreted it as an assault on the common law system (applying in Ireland, Malta and UK), which dates back to the Magna Carta of 1215. There were predictions that its distinctive features - trials by jury (stemming from the right for a suspect to be tried by his or her peers) and habeas corpus (the right to a prompt trial) - were to be casualties.

At the moment, there does not appear to be any proposals on the EU radar screen to undermine those rights. But that does not mean that the development of a criminal code is purely a theoretical question or that it would not have worrying implications, especially for civil liberties.

Joanna Apap, a justice and home affairs specialist with the Centre for European Policy Studies, recently predicted that the common standards under deliberation could eventually lead to an EU criminal code, overseen by a chamber in the European Court of Justice. She identified the lack of common approaches to human trafficking as one of the obstacles that should be overcome before a code is finalised.

In Spain and Malta, for instance, both the transporting and the illegal entry of migrants are punishable under the national criminal code. But in Belgium illegal entry is considered a breach of administrative rules, rather than a criminal offence.

The question of creating greater consistency between procedures in criminal law is touched upon in The Hague Programme, the justice and home affairs plan approved by the Union's leaders in the autumn.

Civil liberties group Justice says that if the programme's aim of ensuring that verdicts handed down in one member state's court are recognised in that of another, it is crucial that this should be based on ensuring a high level of mutual trust between "all actors in the criminal justice process". But in a new submission to the UK's House of Lords, Justice complains that many aspects of developing mutual trust "do not receive ample attention" in the programme - particularly the need to develop high minimum standards of criminal justice across the Union.

At this juncture, it is too early to prejudge the precise content of a more uniform approach to criminal justice. It is a safe bet, however, that commentators will utter the phrase 'lowest common denominator' as one evolves.

Author summarises current developments in the field of EU judicial cooperation and the debate on whether the EU should take further steps such as the harmonisation of procedural rights or, eventually, the adoption of a European criminal code.