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Creeping Towards Single European Criminal Law


15th September 2004

This Green Paper proposes to reform a vast area of the law and raises an infinite amount of questions and concerns.

This Green Paper proposes to reform a vast area of the law and raises an infinite amount of questions and concerns. The first question I would like to ask is in relation to the Commission's opinion that "compatible conditions for enforcement of penalties between the Member States would promote the rehabilitation of persons by allowing them to serve their sentence in a Member State other than the one where they were convicted." Can the Minister tell me:

When is the Government intending to respond to this Green Paper, why has it missed the deadline to do so,and will its response be debated on the floor of the House?

How many prisoners from other Member States are currently serving sentences in UK prisons and how many are on probation in this country?

How many prisoners from potential accession countries, such as Turkey and Croatia are currently serving sentences in our prisons and how many are on probation in our country?

How many British prisoners are currently serving a prison sentence in other Member States and how many are on probation in those countries?

What the cost implications would be of repatriating prisoners from one Member State to another?

If these proposals came into practice and a mandatory minimum sentence was made for a particular crime which is lower than is currently the case in English law, what would happen to the prisoners serving a sentence for committing that crime? Would they have to serve their current sentence, or would their sentence be cut according to the new lower mandatory minimum sentence?

Under what circumstances would a prisoner be moved to his home country for trial. The Green Paper suggests that the transfer could be subject to the prisoner's request or consent, but what of that of the convicting country? In some cases the public would demand that a criminal be put to justice in this country, but what would be the overriding interest - public demand or cost of keeping a prisoner here?

I largely oppose the proposals that this Green Paper makes. From a previous debate, the Minister will be fully aware of my concerns regarding the European Arrest Warrant although at least that procedure allows each country to retain its sovereignty in its criminal law unlike this Green Paper which is forcing a European criminal legal system upon us. And so the harmonisation agenda now marches on.I am not against an integrated approach in every circumstance and can understand it in situations such as for instance the crime of forging the European currency. I am also very much in favour of countries working together to combat crime, especially those crimes that have transnational dimensions. However, the massive overhaul of the law in all of the Member States', that would be needed for these proposals to be put into place, presents such a minefield of practical policy and sovereignty issues that I fear they would be near impossible to implement whatever one thinks of the politics of the proposals.

I do not know how we can have a comprehensive and accurate debate without research first going into the systems of the new Member States. How can we even consider such an overhaul of the law before a detailed report is made on each of the countries considered? I have, already on a previous occasion, asked the Minister the same question in relation to the European Arrest Warrant, but can we really assume that the criminal systems of the ex communist countries, such as Hungary, Latvia, Lithuania, Poland and Slovenia let alone the Western European States work in a compatible way as the system in this country? I think it would be naïve to think that we could easily implement some uniform criminal system amongst countries that are so diverse and whose criminal legal systems bear little resemblance to each other. Also, what of the possibility of the accession of other countries such as Croatia and Turkey - can we really feel comfortable in the harmonisation of our criminal systems with theirs? The Green Paper states that "the approximation of rules of criminal law concerning penalties and their enforcement also helps to secure acceptance of mutual recognition; rather, since it enhances mutual trust." A noble aspiration perhaps but I do not know how we could say that we honestly have mutual trust with all of the other Member States' when it comes to our criminal law systems.

I also am of the view that it is impractical to think that a mandatory "minimum level for maximum penalties" as the Green Paper puts it could be set for crimes committed across all of the Member States. What is considered to be a serious crime in one Member State may not be in another. National priorities and sentiment change all the time. One example of this is drink driving where in this country we have seen a huge shift in opinion in the seriousness of this crime, over as little as twenty years. Another example, very evident in my constituency, is animal rights terrorism, where public opinion has changed hugely over as little as the last five years. Over recent months I have spoken to journalists from various countries including the Member States of France and Austria on this issue and they have no concept of what the problem is, never mind what needs be done to tackle the problem because animal testing is simply not a contentious issue in their countries. So I do not know how it is possible to set a minimum level for maximum penalties across 25 countries, where perceptions of what constitutes a particular crime, let alone a serious variety of the crime in question, could differ hugely from one country to another.

The Green Paper notes that the national legal system "is ultimately an area which lies at the very heart of the Member States' sovereignty", I agree with that but would suggest that these proposals hugely undermine this sovereignty. Why should the decision power over what should be a mandatory sentence be taken away from Britain? What if the overriding opinion of the people of this country in relation to a particular crime is very strong such that there is a real push for this crime to be punished with a particularly high mandatory sentence? The power to change this sentence would no longer be ours if these Green Paper proposals were put into force. Imagine the outcry from the public if this was the case? I do not know how we would justify moving towards a unified criminal legal system across Europe, when we still have separate legal systems in the UK. Far from giving the general public a "shared sense of justice" as the Commission suggests, I believe that the British public would feel a great deal of injustice over the loss of power in its own criminal justice system.

I used the example of drink driving before - the Minister will be aware of the current national campaign for tougher sentencing of drink drivers. A constituent family of mine who is heavily involved in this campaign lost their daughter to a drink driver on Christmas Eve last year. They have started a campaign to increase the sentencing of drink drivers and to remove a drink driver's licence between charge and conviction. Under these Green Paper proposals the power to change this law would no longer be in Parliament's hands.

The Green Paper suggests that "there are grounds for considering whether life imprisonment should be abolished or modified in the Union." The British public would find this outrageous, as I do. It is inconceivable to me that such essential powers be taken away from us and I consider this Green Paper to be yet another potential sledgehammer blow to our parliamentary sovereignty. Far from giving the general public a "shared sense of justice," as the paper suggests, the British public would feel that they have had their justice taken away.

It seems to me to be totally impractical to try and create some sort of unified criminal system in countries whose criminal systems have evolved in totally different ways and whose frameworks bear little resemblance to each other. Even though the Commission have said that the criminal courts have considerable discretion in sentencing and mandatory rules should not be laid down, they still suggest that penalties be in a particular range which would be a total overhaul of all of the criminal legal systems of the Member States and would be mandatory in itself. So what would happen to the rules governing double jeopardy? These vary from Member State to Member State.

Also, as the Green Paper notes, the prosecution procedures vary from country to country. In this country the CPS has the right not to prosecute in certain circumstances, even where the person admits guilt, for example in the interests of national security or the public interest. However, in other Member States, such as in Germany the mandatory prosecution principle applies. Practically it would mean a massive overhaul in all of the Member States' criminal systems if an attempt is made to bring a uniform approach. Even if it would be possible to change the legal systems of all the Member States so that it became mandatory for the prosecution services to prosecute in certain circumstances, practically it does not follow that there would be a uniform approach across the EU. If police procedure differs, then what the prosecution services do becomes irrelevant. At root level, the procedures of countries varies a great deal. In this country police procedure for stopping and prosecuting those who, say, break the speed limit on camera is routine. However, in some parts of the other Member States it may be standard police procedure to turn a "blind eye" to those who speed - whether or not prosecution policy has been harmonised. Again, much of this comes down to public perceptions and national sentiment. The Government has expressed their support for a discretionary prosecution model. I agree with this stance, and would note that this totally eliminates the possibility of true harmonisation. The Government should set out very clearly what their proposed discretionary model would entail and how it would fit in with the Commission's aim for harmonisation.

I find bizarre the Commission's argument that Union minimum standards would prevent offenders "from taking advantage of divergences between penalties in the Member States and moving from one to another to evade prosecution or the enforcement of penalties". Surely harmonisation would hardly be a motive for a criminal to commit a crime in a particular country except perhaps for Raffles or the Mr Big drugs dealer, who probably lives in South America anyway. Even if this was the case, the standards in prisons across the EU would vary hugely from Member State to Member State, and so 6 months in an East European prison may be considered to be a much harsher sentence than 2 years in a UK prison. In other words, other things, as much as the length of sentence, may be as important in dissuading criminals from committing an offence in a particular country.

This Green Paper is very much concerned with the state v the criminal and to that extent there are most likely a variety of potential Human Rights Act implications which would need to be reviewed, but putting that to one side for the moment, what about the rights of the victim? The CPS is currently working towards a system where victims and the family of victims are more advised of the prosecution process, for example more advice and contact is being given to victims and their families regarding possible outcomes, timetables and informing them of the whole process generally. What would happen to these developments if the prosecution moved off shore? Surely there would be a chance of them being lost. This is not a two-sided issue, the rights of the victims and their families also have to be considered. It is all well and good saying that the criminal or his home state should have a say in where he is prosecuted and imprisoned, but what about the victims and the families rights to see the criminals punished in this country. I welcomed the Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings. However I feel that with a move to harmonisation of the criminal legal system across the EU, the rights and feelings of victims and their families could be forgotten.Finally, considering the huge implications that this piece of proposed legislation would have if brought into force, would the Minister confirm that when she is drafting the Government's response to the questions posed in the Green Paper a full consultation will be made with the legal profession and all relevant groups and that she will take into consideration all of the opinions expressed today. When is the Government intending to respond to this Green Paper? Can she also confirm that any Government proposals leading from this Green Paper and their response will be fully debated on the floor of the House. These issues are matters for national determination and the Minister should confirm that harmonisation will not be allowed in through the back door as has so often happened in the past.It looks to me that the Government's attitude to this Green Paper is luke warm. Although it is not going to support it, the Government will just allow it to run along in Brussels and see what comes out at the other end. But we have seen this before and the result is often creeping harmonisation - we should like to see the Government positively speak out against this Green Paper and stand up for the British interest.

Frankly I view the central proposals in this Green Paper, that there can be an "approximation, mutual recognition and enforcement of criminal sanctions in the EU" as barmy It is totally impractical, it is against our national interest it will probably undermine the position of the victim in crime and it undermines this country's parliamentary sovereignty.



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