European Public Prosecutor: a jackboot too far on British Sovereignty?

This is serious folks: please read and understand. It is very, very important… The more people read this the better.

First, just what is (or rather, what will be) the European Public Prosecutor?

The European Public Prosecutor is a proposed European Union post established by the European Constitution Treaty of Lisbon, and covered in Article 69E of said Treaty. Article 69E is reproduced in full below:

Article 69 E

1. In order to combat crimes affecting the financial interests of the Union, the Council, by means of regulations adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor’s Office from Eurojust. The Council shall act unanimously after obtaining the consent of the European Parliament.

In the absence of unanimity, a group of at least nine Member States may request that the draft regulation be referred to the European Council. In that case, the procedure in the Council shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council for adoption.

Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft regulation concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 10(2) of the Treaty on European Union and Article 280 D(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.

2. The European Public Prosecutor’s Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union’s financial interests, as determined by the regulation provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.

3. The regulations referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor’s Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.

4. The European Council may, at the same time or subsequently, adopt a decision amending paragraph 1 in order to extend the powers of the European Public Prosecutor’s Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission.’.

The EPP’s office will have the power to prosecute, arrest and imprison people in the UK (and elsewhere in the EU), on his or her orders – for as long as they wish, with no public hearing. Police can come knocking on your door whenever they feel like it, and hold you without charge or evidence. The Prosecutor would be able to instruct national police forces to carry out cross-border investigations on fraud, counterfeiting, terrorism and trafficking in drugs and people. It could compel the British police to make a prosecution.

The EPP was strongly backed by the former Commissioner for Justice, Freedom and Security, Franco Frattini as part of plans to strengthen the Eurojust agency. Frattini stated in August 2007 that he is “convinced that Europe will have its general prosecutor in the future” and suggested that the Commission was just waiting for the treaty to come into force. He stated that a prosecutor “could prove useful” in areas “where important European interests are at stake”, namely in dealing with financial crime, fraud and counterfeiting at European level.

We have UKIP’s Marta Andreasen to thank for the warning, for two reasons, firstly because she elicited the intention of establishing an EPP’s office from Commissioner Algirdas Šemeta during the EP hearings of the new Commissioners on January 12th. At this point I should say that I am also indebted to Fausty’s Libertarian Blog for some of the information I have used in this article.

Each member state has a veto over the establishment of an EPP, and we in the UK must exercise that right or we will lose sovereignty over our own judicial system.

The Centre For European Reform has written an article (in 2004, when this was just an idea) from which I have extracted the following:

Second, a centralised EPP would disadvantage defendants and their lawyers. Defendants’ rights would suffer if the EPP were allowed to pick and choose between the national procedures in different member-states. If defence lawyers are to put together an effective strategy, they have to know what procedural rules will apply. The creation of an EPP would thus lead to calls for the harmonisation of criminal procedural law to ensure defendants received a fair trial. The most effective way to resolve this problem would be to codify the rights of defendants across Europe, as well as to establish common EU rules of criminal procedure on the collection and transfer of evidence.

Third, the political reality is that an EPP with truly Europe-wide powers is an anathema to some member-states, such as Ireland and the UK. These countries have a different legal system from their continental counterparts, and they are not prepared to accept the harmonisation of criminal procedures. They do not want a supra-national body to interfere in the decisions of national prosecutors about whether or not to pursue a case, or for an EPP to take control of some criminal proceedings.

This does not lend itself to justice as we know it in the UK in any form…

Informed readers may remember that the forerunner of all this was the European Arrest Warrant, much criticised by the British Media (except the BBC, of course). I’ve read the Wikipedia article I’ve linked to, and it covers the matter quite well. Certainly, it provides enough background to raise the suspicions of any British Citizen concerned about the creep of European Jurisdiction in the UK under Lisbon.

These two paragraphs from Wikipedia sum up some of the difficulties we have here:

“On 1 October 2008, Frederick Toben was detained at London’s Heathrow Airport under a European Arrest Warrant issued by the German authorities for allegedly publishing “anti-Semitic and/or revisionist” material. In Westminster magistrates court the next day, he objected to the terms of the warrant, claimed that Britain should not be able to hand him over because it was not in the Schengen agreement and said he had been slandered for his views. “This is an abuse of process. This is a legal ambush. It’s not British law where the individual still has freedoms,” he told the court. He also pleaded with the judge that he should be released and not sent on to Germany.”I beg you to let me leave the country, to kick me out, I promise never to return.”

Frances Gibb commenting in The Times on the detention of Frederick Toben in 2008 under the European Arrest Warrant, states that it is contrary to the assurances that British Ministers gave when the legislation passed through Parliament in 2004, because although denying the Holocaust is a crime in Germany it is not a crime in Britain. At the time “Lord Filkin, then the Home Office Minister, said when the legislation went through Parliament that no one would be extradited for conduct that was legal in Britain”.

Lord Filkin, the minister responsible when the legislation as it passed through parliament, explained in answer to a parliamentary question concerning who would have the power to decide whether or not an offence of racism or xenophobia had taken place, “We have already explained that this is a category rather than a specific offence. It will be for the requesting state to certify that a particular offence falls within the relevant category”

One of the strongest criticism of the EAW was that it made it possible for a British citizen to be forcibly extradited to another European country after having been accused of a crime in that country, which may not be a crime in the UK. Further, there was no burden of proof required, and the British judicial system was unable to resist the extradition.

This is, however, but the thin end of the wedge. Should we fail to veto the proposal, the EU will set up its own Prosecutor’s Office. Once the principle of the Prosecutor’s office has been accepted, it will be impossible to resist the call for the EPP to have his own rule book – Corpus Juris – and then his own enforcement agents – the European Gendarmerie Force. For those of you unfamiliar with the EGF, read the previous Wikipedia link, but then go here, to the EGF home site and see what it’s really about. This is a truly terrifying development, and with the EPP behind, there is little that can be done to limit their reach and powers. This is a pan-European, para-military force with the powers to operate outside National Governments, within the countries of those Governments. This Force is currently in training, in readiness for the deployment facilitated by the Lisbon Treaty, and further enhanced by the prospect of an EPP.

You will have noticed above, the use of the phrase “Corpus Juris“. This is the legal code, sometimes referred to as the Napoleonic (inquisitorial) code. It differs in the main (and in simplistic terms) from our own Habeus Corpus in that we believe one is innocent until proven guilty and that the idea of detention without prosecution is wrong (although the present Government has done its best to destroy that with the concept of 42-day detention and so on under the Terrorism Act, and the removal of Double jeopardy). Corpus Juris, rather, takes the opposite stance, and its court systems are much, much more adversarial.

In short, Habeus Corpus is designed to protect individuals from harming themselves or from being harmed by the judicial system and has been an important instrument for the safeguarding of individual freedom against arbitrary state action. The process goes: 1) suspicion,2) investigation, 3) arrest, 4) charge. We also have a right to trial by Jury (also undermined by this Government) at which jurors can actually disregard the law if they think it would give an unjust conviction.

Corpus Juris is rather different: 1) suspicion, 2) arrest, 3) investigation and 4) charge. There is no right to trial by jury as their system involves judgements being made by a career judiciary who are the judges and prosecutors and who are, to all intents and purposes, ‘colleagues’ (a quite separate body of lawyers makes the defence and are often treated as inferiors). Importantly, in most instances the accused can be tried a second time for the same offence, since the prosecution has the right of appeal against acquittal.

We in the UK and Ireland do not subscribe to Corpus Juris, but most of the EU does…

However much appearances may be to the contrary, British political parties are aware of this threat, and have varying ways of approaching it.

The Lib Dems will welcome the EPP; apparently Graham Watson MEP claims to be “the person who took the European Arrest Warrant legislation through the European Parliament”.

Labour, when asked by Lord Stoddart where it stands on this, announced (Feb 9th) that it opposes the establishment of an EPP.

However, the decision to support or veto the EPP proposal will have to be made after the UK’s general election. It will therefore be the decision of the next British government; the current government’s announced opposition to the EPP will not bind a future government. Therefore, the question is, as a potential winner of the next General Election, what is Cameron’s position on it?

According to Fausty, Philip Johnston has already written about this in the Telegraph on 1st February, questioning Mr. Cameron’s position, and the leader of UKIP, Lord Pearson, posed the question in his blog, on 17th February.

Back to Marta Andreasen who sent David Cameron an open letter (attached below), which was copied to all members of both Houses of Parliament on February 4th, asking him if he would pledge to veto any proposal for an EPP. To date, according to Marta’s website, there has been no reply from Mr. Cameron… He doesn’t appear, from my research, to have made even a reference to this, much less any public announcement.

After the General Election it will be too late. If Cameron wins and doesn’t take a proactive stance against this, it will be forced upon us. We must ensure that as many people as possible know about this, and that they cause a lot of fuss with their MPs and MEPs. We really need the reassurance that Cameron is going to oppose this…

Marta’s letter:

European Parliament
ASP 04F 152
Rue Wiertz 60
1047 Brussels
Belgium

David Cameron MP
House of Commons,
London, SW1A 0AA

4 February 2010

Dear Mr. Cameron,

Re: The European Public Prosecutor (EPP)

On 12th January 2010 I asked Commissioner-designate Algirdas Šemeta, during his confirmation hearings before the Budgetary Control Committee (of which I am a member), if he plans to establish the European Public Prosecutor’s Office (EPP) as provided for in the Lisbon Treaty.

His response was that “we should move forward”. He further confirmed that it is also being discussed by other members of the European Commission. This means that such a plan is already Commission policy and that it will be implemented regardless of who is confirmed in due course as Taxation and Anti-Fraud Commissioner. This reply, and the implications thereof, and the absence of any firm denial leave no doubt that European Commission and the Budgetary Control Commissioner intend to bring forward such a plan in the very near future and that planning is already well advanced.

As you know, Article 86 of the Treaty on the Functioning of the European Union (TFEU), provides for the possible establishment of the Office of European Public Prosecutor from EUROJUST. For such a proposal to become law, however, there must be unanimity in the Council: in other words, the United Kingdom retains a veto on the creation of an EPP. This requirement puts the United Kingdom in a very strong position to prevent the creation of such a post when it is presented to the Council.

The concept of a European Public Prosecutor is, I am sure, entirely repugnant to the British people. Furthermore, when it has been raised in the past, the UK government, recognising the hostility of Britons to it, has signified its clear dissent to the proposal.

It will create, for the first time, a criminal jurisdiction at the EU level.

As importantly, the proposed body of law to accompany these proposals, the so-called “Corpus Juris”, threatens to usurp the 800-year old system of the Common Law in England & Wales and its Scottish counterpart. It is even more objectionable when the Treaty provisions for the rules of evidence and judicial review are taken into account. Those most certainly will not be based on either the English or Scottish legal systems with the traditional rights and protections that Britons are used to.

May I remind you that such proposals were never contemplated by the British people in 1975 when they voted to remain in what was then the EEC.

I write, therefore, to ask you if you will undertake now that the Conservative Party will include in its forthcoming manifesto for the 2010 General Election an unambiguous pledge to veto any proposal to establish a European Public Prosecutor’s Office if you become Prime Minister at the forthcoming general election, whether as the head of a government with a majority in Parliament or as head of a minority coalition government?

If not, why not?

I call upon you to make clear your position on this most important matter before the upcoming election campaign, so that British voters might judge your promises to prevent further such powers being transferred to Brussels.

Yours sincerely,

Marta Andreasen

Member of the European Parliament for the South East of England
UK Independence Party