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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.