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PART II OF “A NARROW ESCAPE”

WHICH SYSTEM FOR A UNITED EUROPE?

[Ed: This is the second Part of ‘A Narrow Escape”, the first Part is here.]

Since the European project was clearly heading for a single State, I realised they would be wanting to have a single system of criminal law, or at least the same underlying legal culture and values. The big risk, as I saw it, was that Brussels would try to impose a Napoleonic-inquisitorial system on us. In the early nineties I wrote to the then Lord Chancellor, Lord Mackay of Clashfern, to warn him of this danger, and to suggest that in European council meetings he should propose that the continental countries should adopt our system, which was much better suited than theirs to achieving the twin aims of catching and convicting criminals while sparing the innocent unnecessary trials and tribulations.

I received no reply from the Lord Chancellor. In 1993 I was invited to speak at a conference in Florence on the English criminal trial, on a platform alongside the Lord Chief Justice, Lord Peter Taylor of Gosforth. I asked him if he could ask the Lord Chancellor to answer my letter. He did so, and it turned out that the letter had been “mislaid”. I never did receive any answer.

In the 1980s the Italian system had been shaken by a spectacular miscarriage of justice – the case of “Enzo Tortora”, comparable to the historic Dreyfus case in France, and there was a move afoot to reform their criminal procedure. The public had been much influenced by the TV series “Perry Mason” about a defending lawyer in California, and the Italian Parliament passed a law calling for a new system of criminal procedure to be brought in, “incorporating the features of the adversarial system” – ie our Anglo-Saxon system. In 1985 I was asked by the Rome Bar Council to find an expert on English criminal procedure to come and give a lecture explaining how the English criminal procedure functioned.

I found the expert, Dr David Thomas of Trinity Hall, Cambridge, and he came out and I interpreted for his lecture. The next year I published an article in an Italian Law Journal comparing the English criminal trial as he had described it to the form of trial prefigured in the law passed by the Italian Parliament for the new Code. Out of ten fundamental features, I found that they only incorporated two. The reform did not touch the omnipotent powers of their career judiciary. Their system remained basically inquisitorial.

Nevertheless, my article impressed one lawyer, who headed the Italian branch of a network of European lawyers,  sufficiently for me to be invited to fill an empty slot at a seminar, organised by the European Commission, to be held in Spain, in April 1997. Exactly 20 years ago.

This was the seminar where the Commission unveiled its project – “Corpus  Juris” – for  a single uniform European criminal code, initially in embryo form, and limited to crimes of fraud against the EU’s finances; yet a message to the seminar from the then President of the European Parliament, Don José Gil Robles, made clear that this was just a toe in the door.

In specific articles this code would abolish trial by “simple jurors and lay magistrates”. It would enable provisional detention of a suspect, on no evidence  and with no public hearing for six months, renewable for three months at a time, pending investigation, so that was bye bye Habeas Corpus. And it would allow the prosecutor to appeal against an acquittal, thus ending our safeguard against double jeopardy.

Moreover it would create a European Public Prosecutor, armed with these fearsome powers, who would have his own delegate in each member state, and national public prosecutors would be “under a duty to assist him”. Physical enforcement and control from Brussels would thus be established over everybody in the EU. Europe was taking a decisive step to becoming a single state, based on the Napoleonic-inquisitorial model, quite alien from our own.

I was shocked to learn that my prophecy was coming true. The central bodies of the EU were acting just as I had predicted.

Somebody at the seminar said “Eh, in a couple of years all this will become law”. I muttered to myself “Like hell it will, not if I can help it.”

When I returned to Rome, there were just two weeks to go to the British general election of May 1st, the one where Tony Blair beat John Major in a landslide.

In my naiveté I thought that this bombshell news item about the intentions of the Commission to do away with out trial by jury, Habeas Corpus, etc. could sway the outcome of the election. I imagined that all the news outlets in Britain would be eager to broadcast this explosive story, and to ask the candidates what they thought about it. Their answers could sway undecided voters one way or another.

So I got onto the phone and called them all… not one of them was interested. Only The European Journal, edited by the excellent David Matthews, published my story, in the April issue, which however came out only after May 1st. I wrote to Bill Cash, who owned the magazine, was an MP and a barrister, and implored him to use his high media profile to bring the story to public attention. He never bothered to reply to me. He did mention “Corpus Juris” a couple of times in Parliament, but never explained to his listeners what it was.

The EU side was fully aware of the explosive impact this would have had on the UK, and indeed the FCO was not even told about the seminar. I learnt from a confidential source that they were “gobsmacked” when I sent them a report. However they kept quiet about it.

Meanwhile Brussels proceeded with its plans for implementation. In November the following year they called an inter-Parliamentary conference in Brussels on Corpus Juris. The British delegation included Humfrey Malins, MP QC, and Lord Goodhart. They were all asked “to say how far the public in their respective countries were ready to welcome a single European criminal law system”.

The British were totally unprepared for this, and Humfrey Malins wrote an indignant letter to the Daily Telegraph.

This sparked a whole week of articles in the Daily Telegraph, raising the alarm. I was asked to write them a letter about it, which was published. In turn, the Telegraph’s campaign triggered Parliamentary Questions about Corpus Juris, tabled by MPs Patrick Nichols and James Clappison.

Luck had it that the Home Office Minister fielding questions that day was Kate Hoey. She read the Corpus Juris project and was horrified by it. She made a promise to Parliament, reported by The Sun, which had joined the Telegraph’s campaign, that the government would veto Corpus Juris if it was ever formally proposed. Blair did not dare to disavow this promise, though another Labour politician, Pauline Green, MEP, led the Labour and other EU Socialists in the European Parliament to vote to “welcome” the Corpus Juris proposal. The Tory MEPs also voted to welcome it, but later their leader explained that they had pressed the wrong button “by mistake” (!)

I published a letter in the Telegraph asking Blair to clarify which of the two Labour ladies, Kate Hoey or Pauline Green, represented his true policy on Europe. He never replied. Kate Hoey however was later moved from the Home Office to Sport.

In 1999 a House of Lords select committee, chaired by Lord Hope of Craighead, examined the Corpus Juris project in detail, and produced a Report, rejecting it. Two European MEPs, Frau Theato and Signor Bontempi, giving evidence to the Committee, said that they were planning to introduce it via Treaty article 280, which allowed majority voting. Kate Hoey said, more or less, “Like Hell that would allow majority voting”. She would fight it tooth and nail.

The EU Commission must have realised that, although the European Court of Justice, if asked, would surely have confirmed their interpretation of article 280, a furious row would have broken out with the UK, the British bulldog would have been aroused, growling and snarling. So the Corpus Juris project was quietly put on one side, for the time being.

A first draft of the Treaty of Nice, in 2000, included a modification of article 280 which would have removed any doubt that it could be used to bring in Corpus Juris by majority voting, but it was later dropped.

Meanwhile at the EU’s conference of Tampere, in 1999, a different approach was adopted, this time with the full connivance of the UK govt, represented by Jack Straw.

Instead of a single system of criminal justice valid for all, we got the principle of “mutual recognition” of each other’s criminal law systems as equally fair and just. The main fruit of this approach had been the European Arrest Warrant.

By banning British courts from asking to see any evidence, when faced with an EAW, a part of the continental system was in effect imposed on Britain. People are now arrested in Britain on the orders of continental judiciaries and shipped over to lengthy duress vile with no public hearing and no evidence, “pending investigations”.

Rather than being an alternative to Corpus Juris, this is in effect the first stepping stone towards its implementation.

[Ed: The concluding part of this series of articles on the history of ‘Corpus Juris’, showing the narrow escape we’ve had, will be published tomorrow.]

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Torquil Dick-Erikson
About Torquil Dick-Erikson (18 Articles)
Torquil Dick-Erikson has been living in Rome for over 40 years,and, as a legal journalist, studying the differences between the continental and the Anglo-Saxon systems of criminal justice (there are no Chairs of comparative criminal procedure in any University in the UK or elsewhere, AFAIK). He has spoken in conferences in Italy and in England, and published in Italian and English law journals, as well as in the Financial Times, the Wall Street Journal, and elsewhere. From 1993 to 1998 he was a contributor to The European Journal, where he published his findings on Corpus Juris

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