The proposed alternative to the European Arrest Warrant is not satisfactory

I am afraid that David Davis’s scheme for a new European Arrest Warrant is not at all satisfactory as it stands. Here is the essence of it:

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Under the proposal a new “ad hoc” legal commission would replace the European Court of Justice (ECJ) which currently rules on extraditions.

The new panel would have a Supreme Court judge, an ECJ judge and one from a third neutral country to rule on each extradition.

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This proposal as it stands is merely cosmetic, and here is why:

Any oversight by a superior body, whether our own Supreme Court or even more so by a new ad hoc mixed legal commission can only see and ensure that the current EAW legislation is applied by the lower courts.

And the main problem is that it is not proposed here to alter the current EAW legislation, which says that prisoners must be surrendered at a bald, unsupported, demand from the requesting State, with no examination by a court of the requested State of evidence of whether there is a serious case to answer or not.

It is – wrongly and wrongfully – ASSUMED by many in Britain that the EU states will all have assembled evidence of guilt and will be “prosecution-ready” before they issue an EAW (as is the normal practice in Britain). Indeed according to the Treaty we are bound to trust them blindly to have done so, under the doctrine of “mutual confidence and recognition”.

Our politicos and legal eagles, not to mention pundits, are still – willfully? – ignoring the fact that the practice in States ruled under the Napoleonic-inquisitorial dispensation is to arrest a suspect FIRST, and only AFTER they have him under lock and key, do they try to build a case and seek evidence against him. This often takes months, while the unfortunate rots in duress vile with no public hearing, as we have seen happen all too often.

This is not – as our own people assume – due to the sloppiness of continentals in applying standards that we in Britain consider to be right and normal; it is the way their system functions normally, and is supposed to function. They do not work to our standards,  but to their own, which are completely different from, indeed alien to, ours.

I have been through the historic reasons, going back 800 years, for this profound difference elsewhere and shall not do so again here.

Whether the grounds for suspecting, and for arresting, a particular person amount to serious evidence of a case to answer, or flimsy evidence that would not stand up to serious scrutiny, or no evidence at all but merely clues, or just a hunch, or even a prejudice, on the part of the investigators, is sorted out in Britain by our Habeas Corpus.

This provides a right for a prisoner to be brought into a public hearing in open court within HOURS or at most a few days after arrest. And there he can demand to be shown the evidence on which he was arrested. He must there be “charged”, and in Britain and other English-speaking nations a charge must be based on hard evidence, already collected, of a case to answer. No right to any such speedy public hearing exists in continental States, where six months, extensible, in prison “pending investigaton” with no public hearing, is considered a normal limit (for many categories of cases, not only extreme terrorism cases), as per the Corpus Juris proposal for a single unified criminal code for all Europe.

Some years ago an attempt by our own government to introduce 42-day detention without charge nor public hearing in terrorist cases was resisted and opposed on principle by none other than David Davis himself, who nobly resigned his seat and stood for re-election on this very point, and was returned again by his electorate who clearly shared his concern to keep our traditional safeguards of the liberty of the subject. Has he forgotten this? How can it have escaped his notice that the EAW as it stands brings in not just six weeks, but six months, in the case of Andrew Symeou eleven months, detention without charge or public hearing?

The European Convention on Human Rights provides no remedy. Its article 6 merely says that a prisoner must have a public hearing within a “reasonable” time after arrest, and the continentals will say that it is “reasonable” for them to take six months to investigate a person and assemble evidence against him of a case to answer.

One solution could be to force the continental States to hold a Habeas Corpus public hearing within hours of receiving a prisoner to show that there is a case to answer, or to release him. We have already seen that this would not be accepted by them for it goes against their whole legal culture. Indeed in 2002 the late Neil McCormick QC MEP presented a motion to the EU Parliament to set up a “Euro-Habeas Corpus” to go with the EAW, but it was overwhelmingly voted down.

So it will have to be our own courts who demand that an EAW, or indeed a warrant received from any foreign State, must be accompanied by evidence of a case to answer which can be examined by a UK court with the power to reject it if considered insufficient. This is what happened before the European Extradition Act of 1989. The delays complained about were largely due to the foreign authorities, who are quite unaccustomed to having to investigate first and arrest after. They prefer to do it the other way round. Under our previous legislation, they had to do it our way. Now we have to do it their way.

At present the UK is forced to conform to the continentals’ yardstick. This flies in the face of Magna Carta (clause 38).  But people on British soil (even if not British citizens) must be entitled to the protection of British laws. This always used to be the case, and it must be restored.

The renewal of border checks will enable the UK to keep out known foreign criminals whose identities have been flagged up to us by foreign authorities. So the garish scare-mongering about “Britain becoming the Costa del crime” and the “honeypot for criminals” argument can be laid to rest.

The practical argument that supporters of the EAW cannot answer is: if no substantial evidence of guilt is collected BEFORE arrest, how can the authorities know that they have got the right person to accuse? Indeed the record of the EAW’s application shows many cases where perfectly innocent people (including even a British judge – Colin Dines!!) were targeted and made to suffer forced transportation and often lengthy imprisonment, thus allowing the truly guilty parties to escape scot-free.

Even if we had our own Supreme Court to oversee the application of the EAW, it can only do so on the basis of the legislation as it stands. However sympathetic it might be towards an obviously innocent victim of a monstrous judicial muddle, or even of persecution on a trumped-up charge, as long as the doctrine of “mutual recognition” remains on our Statute book, the Supreme Court cannot do anything other than apply it. Willy-nilly. Judges in our lower courts have even been embarassed about EAW cases like this, but have been powerless to do anything other than apply the law as it stands. The Supreme Court would be in a like position.

So a reform of the EAW needs to insist that when foreign authorities send us a warrant to arrest someone on British soil, they must also send an indication of the evidence of a prima facie case to answer. Otherwise we cannot prevent them from using the EAW as a tool for fishing expeditions.

Is David Davis going to set us free from the EAW?

It is very good to see that David Davis, by raising the point about the supremacy of the ECJ’s jurisdiction over the EAW, has taken a first step to breaking us free from the shackles of the continental inquisitorial justice system, so alien from ours. I am hoping that he might now take a second step, viz, as follows:

In my speech on Alien Legal Systems, at the CIB event in the House of Lords on March 15th this year, I mentioned David Davis. Here is an extract from that speech, with my personal challenge to him which he might now answer, and indeed perhaps he will answer it:

 “For us in Britain, the preliminary public hearing in open court,  where the prisoner is formally charged, must take place within hours, or at the most a few days, after his arrest and detention.

Some years ago there was an attempt to extend this, in serious terrorist cases, to three months, then reduced to six weeks. An MP called David Davis fought a noble battle of principle against this – he resigned his seat and stood again for Parliament on this very point – Habeas Corpus. He won and was returned to his seat. In the end, Parliament fixed a maximum limit of 28 days of detention without charge, and only in exceptional cases of terrorism. This is what we in Britain consider to be “reasonable”.

But for many EU states, under their Napoleonic-inquisitorial jurisdictions, it is considered “reasonable” to keep a prisoner under lock and key with no public hearing for six months, extensible by three months at a time. These are the terms of the Commission’s Corpus Juris proposal for an embryo single uniform criminal code to cover the whole of Europe, including the British Isles. This is what is may be faced by anyone in Britain who is targeted by a European Arrest Warrant. And on a long list of crimes, not just terrorist cases.

Now is the David Davis who resigned his seat to stop the six weeks’  detention bill on no evidence, the same David Davis now in charge of the government’s Brexit department? If so, does he share Ms Rudd’s wish to keep us subject to, not six weeks, but six months and, in the case of Andrew Symeou, nearly a whole year’s detention with no public hearing? If he opposes it, will he please say so openly?

This is no marginal matter. As I have shown, whoever controls criminal justice, controls the police and prisons, and thus holds the  ace of trumps in the struggle for power over a country. And that is precisely what Brexit is really about – who shall hold power in this land? Shall it be the unelected bureaucrats in Brussels? Or shall it be the people of Britain?

So we see that the European Convention is a very thin blanket,  designed to cover systems with Habeas Corpus as well as those without. It can only work if the woolly ambiguity of its use of words like “reasonable” [in article 6, referring to a prisoner’s right to a public hearing within a “reasonable time”] remains unchallenged.”

[For your ease of reference, the whole speech is here (7 pages)]

Magna Carta and Europe

Although written two years ago to mark the 800th anniversary of Magna Carta, this article remains very topical as our Brexit divorce begins. It is imperative for it to include a complete break with the Napoleonic inquisitorial legal system which dominates the EU if Brexit is truly to mean Brexit.

Magna Carta crossed the oceans. In all the lands where English is spoken, its principles are known and recognised.

But it never crossed the Channel.

In 1215, in England the Barons were confronting King John; in Rome Pope Innocent III was setting up the machinery of the Holy Inquisition.

A major purpose of Magna Carta was to limit the powers of the King – the central State authority.

In contrast, the Inquisition expanded and deepened the power of the authorities over the individual. Not only actions, and words, but even thoughts, were scrutinised and, if “culpable”, punished.

In ancient Rome, an accuser faced a defendant, and the case was decided by a judge, independent from both. Under the Empire, the Emperor’s word became law. The dark ages saw more primitive forms of judgement (trial by ordeal, by combat…)

As analysed by the late, great, Italo Mereu, Professor of the History of Law at Ferrara University, in his painstakingly detailed history of the Inquisitorial system from the origins to the 1970s, “Sospettare e Punire” (“To suspect and to punish”), the Inquisition brought together the functions of prosecutor and investigator with that of the judge, in the new figure of the Inquisitor. The Inquisitor’s job was to identify, seize, and interrogate a suspect, in order to arrive at the “truth”. Or, it might be said, at the desired result.

The arbitrary powers of the inquisitor, and of his superiors, were clearly vast. The machinery of the Law became a tool for the ruler to ensure complete command and control over his subjects.

Clearly Magna Carta constituted a potent obstacle to such arbitrary exercise of power. In fact the Pope was furious when informed about what had happened at Runnymede, and wrote to the English bishops and abbots who had helped set it up telling them they had done something “abominable” and “illicit”.

The specific constraints on the power of the State provided by Magna Carta include the famous and much celebrated clauses 39 “No free man shall be…. punished… save by judgement of his peers and by the law of the land”, and 40 “To no-one shall we deny, delay, or sell justice”. Clause 39 in particular removed from rulers a crucial power of government, the power to decide who should be punished and who not. This power was placed in the hands of a jury of the defendant’s peers, thus laying a foundation stone of democracy, and a bulwark against arbitrary punishments.

For eight hundred years since then, the English and the continental criminal procedures have gone off in different directions.

The Inquisition ravaged the nations of continental Europe for centuries, persecuting and prosecuting witches, heretics, and…. scientists. Initially an ecclesiastical institution, its methods were adopted by secular rulers, as a means of suppressing opposition of any kind.

England alone escaped its grip. We fought off the Spanish Armada, which would have brought the Spanish Inquisition to our shores. Elisabeth I rejected the inquisitional method – “I will not make windows into men’s souls”. A sort of papal “fatwa” promised a fast track to heaven for any Catholic who murdered her. Yet she did not outlaw those who followed the old religion, though subjecting them to some constraints.

The power of Parliament grew and in the mid-seventeenth century prevailed over that of the king in the civil war. Parliamentary supremacy – representing ultimately the will of the people – was then firmly consolidated with the glorious – and bloodless – revolution of 1688-89.

Meanwhile across the channel absolutism held sway. The King of France famously proclaimed “I am the State”.

The French Revolution swept away much of the old order. The “rights of man” were proclaimed. Then soon Napoleon took over the helm of France, and his armies set about invading most of Europe to export his notion of the “rights of man”. His codes of law to this day underlie the legal systems used on the continent.

Some of the original thinkers of the enlightenment, like Voltaire, whose ideas helped spark the French revolution, had drawn inspiration from the very different system of government they had seen in England. But Napoleon did not adopt Magna Carta, nor its principles, in criminal procedure. He adopted and adapted the basic elements of the inquisition, redirecting it to serve not the Church, but the State.

In the traditional English system, the powers of jurisdiction governing the different parts of criminal procedure are attributed to different bodies. Essentially, the police, divided into 43 independent local constabularies, investigate a case; the magistrates (mostly non-lawyers, unpaid volunteers working part-time) sign arrest warrants, and then decide bail and committal to trial in public hearings; a barrister is hired to conduct the prosecution in court, where he or she faces another barrister hired by the defence; the judge presides over the proceedings in court deciding procedural disputes between the parties, and handing down the sentence after a guilty verdict. And crucially, the verdict is entirely in the hands of a jury of 12 ordinary citizens, voters selected by lot from the electoral register, peers of the defendant, just as was establsihed by Magna Carta so long ago.

The distribution of these powers into different hands provides essential checks and balances, not just between the legislative, executive and judicial functions, as famously prescribed by Montesquieu, but within the judicial function itself, on whose delicate balance depends the individual freedom of each and every citizen from arbitrary arrest and wrongful imprisonment. The use of legal violence on people’s bodies, by arrest and imprisonment, is an exclusive prerogative of the sovereign State in any society. Its arbitrary use is a prime tool of tyranny. This is why effective legal safeguards against misuse are so necessary. Here lies the genius of Magna Carta, which 800 years ago in England provided the first legal safeguards against such arbitrary misuse.

Compare and contrast with today’s Napoleonic-inquisitorial systems, where a career judiciary, whose members are State employees, comprises prosecutors and judges, but excludes defenders. The prosecutor is nowadays no longer the selfsame person as the judge, but they are both servants of the State (though they may sometimes be institutionally independent from political control), and they are close colleagues, who can work in tandem together on case after case. The judges may have been prosecutors during the course of their careers, but normally they will never have been defenders.

Under the Napoleonic-inquisitorial dispensation used in continental Europe, all these powers are placed in the collective hands of one brotherhood – the career judiciary.

In Italy, for example, criminal investigations, prosecutions, assessments of evidence, decisions on arrest, bail or remand, the direction of courtroom proceedings, judgements of guilt or innocence and sentencing are all under the exclusive control of members of the career judiciary (“magistratura” – not to be confused with the idea of an English “magistrate” for which there is no equivalent).

After a law degree, young law graduates face three career alternatives: attorney, notary, or the judiciary (“magistrato”). To become a judge, they must pass a stiff State exam (set and marked by existing members of the judiciary), and then they are in. After one year’s “apprenticeship”

(“uditorato”), they are assigned to a judicial office as a prosecutor/investigator or a judge, where they sit, pen in hand, empowered to order criminal investigations, arrests, bail, committals, etc. They are not trained in detective techniques, relying on their book knowledge of the law. But they direct the police (who may have such training) in the conduct of criminal investigations. It is said that this separation between competence and responsibility in criminal investigations explains why numbers of cases are not investigated as fruitfully as might be hoped.

Trial by Jury – that great heritage of Magna Carta – has no place in the Napoleonic-inquisitorial dispensation. Most cases are dealt with by professional judges alone. Very serious cases are heard by what might look like a jury of ordinary citizens chosen by lot. Actually, the verdict and the sentence are decided by a mixed panel of six lay “jury-people” and two professional career judges. They all go into the jury-room together, where the “judge’s summing-up” is delivered in secret. Although the six jury-people can outvote the two professionals, the latter obviously take a leading role in guiding the verdict. They also have other means of ensuring that what they consider a “perverse” verdict can be appealed against. There are no safeguards against double jeopardy – the prosecution are perfectly entitled to appeal against an acquittal, even if no fresh evidence has emerged.

Two other direct legacies of Magna Carta are clause 40 – “to no-one shall we delay justice”, and the not-so-often celebrated clause 38. The latter is worth quoting in the original: “Nullus ballivus ponat de cetero aliquem ad legem simplici loquela sua, sine testibus fidelibus ad hoc aductis” – “No judicial officer shall initiate legal proceedings against anyone on his own mere say-so, without reliable witnesses brought for that purpose”.

These provisions are ensured by Habeas Corpus. Under Habeas Corpus, a suspect if arrested must be brought into open court within hours (or at the very most, a few days), and there charged formally. And the charge must be based on enough hard evidence, already collected, to shew that there is a prima facie case to answer.

It is perhaps taken for granted in English-speaking countries that any proceedings must be based on evidence. Not so however on the continent. In Italy, for example, a person may be arrested on the orders of two members of the judiciary (one acts as “prosecutor-cum-investigator” and the other as “judge of the preliminary investigations”), at the outset, on mere suspicion based on clues (“indizi”). Hence the title of Professor Mereu’s book. The prisoner becomes a “person-under-investigation” (“indagato”), and can be kept in prison during the investigation, which can last months, before the authorities are ready to commit him. There is no right to any public hearing during this time. Within hours of arrest, the prisoner is interrogated by the two judges who ordered his arrest, in a secret hearing. He is assisted by his lawyer (or by a lawyer appointed by his interrogators if he cannot afford his own), and he can try to persuade them that they have got the wrong person, but he cannot see any evidence against him until much later.

All this directly violates clauses 38 and 40 of Magna Carta. Yet this is what happens to British subjects and others who are subjected to the European Arrest Warrant. Under the EAW no British court is allowed to ask to see any evidence of a prima facie case. Presumably the Parliamentarians who voted for this measure must have believed that the foreign judicial authority issuing the EAW would already have the necessary evidence, to be exhibited in a public hearing soon after extradition took place. Yet numbers of innocent Britons can testify that this is not the case. Famously, Andrew Symeou spent 11 months in a Greek prison before his first appearance in an open court hearing, where the case was dropped, owing to lack of any serious evidence.

It is thought that the European Convention of Human Rights offers adequate safeguards for the innocent. It does not. The ECHR makes no provision for Habeas Corpus, let alone Trial by Jury. Article 6 vouchsafes an appearance in a public hearing within a “reasonable” time after arrest, but does not specify what is “reasonable”. For us it is a matter of hours or at most days. In Europe it can be months or even longer.

Our forefathers, in their wisdom, laid down these safeguards for our freedom. Their words have rolled down eight centuries, to protect us. Yet today, we are abandoning them, for an illusion, based on wishful thinking.

This 800th year after Magna Carta is also the 200th anniversary of Waterloo. How ironic if Napoleon should have the last laugh after all.

 

For anyone wishing to study this subject in more detail, this submission to the House of Lords Committee on opting out of various criminal measures in the Lisbon Treaty is worth reading.

Photo by bekra

Mrs May must suspend the EAW now

By Torquil Dick-Erikson (c) 2016

In April 1997, at a specially convened seminar in Spain, the EU Commission unveiled its “Corpus Juris project”, for a single system of criminal law for the whole of the EU, based entirely on Napoleonic-inquisitorial principles. At that stage it was nothing more than an embryonic criminal code, but had it been inflicted on us, it would have swept away our own Magna Carta-based system, in particular our Trial by Jury and Lay Magistrates (art. 26.1), our Habeas Corpus (art. 20.3.g) and our protection against double jeopardy (art. 27.2). I happened to be among 141 European jurists invited to attend, as guests of the Commission. I was included in the Italian delegation, as a last-minute replacement. The head of the Italian delegation had read an article I had published in an Italian law journal and had been impressed enough to invite me to come along and fill an empty slot.

Since then, I have been following subsequent developments in the area of European criminal law, including the introduction of the European Arrest Warrant (EAW) and the establishment of its own paramilitary, lethally armed, police force, the European Gendarmerie Force (EGF). Six national gendarmeries are currently being trained and drilled side by side, in a location in Northern Italy, to weld them into a single European corps. They will then be deployed all over the European Union, in any state with its “consent” (art. 6.3 Treaty of Velsen, signed by EGF participant states).

In 2012, when she was Home Secretary, Mrs May said of the Eurogendarmerie, “Of course” we will call upon them, “onto British soil”,  “if we see the need”. Since she became Prime Minister, I can find no evidence that she has ever disowned this statement. What is more, no one, apart from Christopher Gill and myself, has been calling on Mrs May to refuse unevidenced European Arrest Warrants with immediate effect.

Mrs May has insisted that “Brexit means Brexit”. If she is serious about this, EU authorities must no longer be allowed to arrest and deport people from Britain at their whim – i.e., without shewing any substantive evidence.  The EAW legislation specifically states that the authority issuing an EAW should not provide any indication of evidence of a prima facie case and the country receiving a EAW is not allowed to ask for any evidence but has to trust the requesting country blindly. Past experience shows that we cannot do this as their systems of criminal justice are totally different from our own. They allow a suspect to be arrested and kept in prison for many months “pending investigation”, with no right to a public hearing nor obligation on the prosecution to exhibit any evidence during this time..

We live in a country that has been remarkably favoured – partly due to our island location, partly because of the protection provided by what was once the world’s most powerful navy. We have thus been spared the violent changes which our continental friends have seen to their governments within living memory.

For them, the concept of heavily-armed paramilitary police like the EGF is quite familiar. They see them every day on their streets. They will be less concerned that we would have been that policing in the EU will eventually look like, feel like, and be like a military occupation by a hostile armed foreign force.

In this year’s referendum campaign, little was made of the vast difference between the UK’s criminal justice and policing systems and those on the Continent. At first glance, it hardly seems like a winning argument as most people in the UK have never been before a court of law, do not have a criminal record and do not expect to. This is to miss the point.  We have had such a long and unbroken history of peaceful constitutional development that we have forgotten that, at the end of the day, criminal law is actually the handle granting complete control over a State and all its inhabitants.

Criminal law means police, handcuffs and prisons. It means the physically forceful, enforcement powers of the State over the citizens. It is under the criminal law that the State can (or cannot) send its officers into your home, breaking down the door, hauling you out of your bed and off to a prison. The State holds a monopoly of legal, even lethal, force over the citizens, and the exercise of this power is regulated by the criminal law. In our country, the State has exercised this power in a considerably more benign way than across the Channel. For 800 years its powers in England have been limited by Magna Carta. On the continent they have been enlarged and deepened by the Inquisition, with methods as adopted and adapted by Napoleon.

It is therefore critical, if Brexit is to mean Brexit, that the inevitable co-operation that will be needed between the UK and the EU on matters of criminal justice must grant no concessions to any aspect of EU criminal justice which violates basic safeguards of our own historic system. Any arrangement must include a repudiation of the European Arrest Warrant and the solemn undertaking that there will never ever be any invitation for the EGF or any other armed EU body to set foot on UK soil.

If the EAW is properly presented as “Arrest and lengthy imprisonment on no evidence and with no right to a public hearing for many months”, which is what it is, but which was not made clear when Parliament voted to reconfirm it in November 2012, it will be very hard for opponents to argue against its immediate suspension, as from NOW. And procedurally a case can surely be made for Parliament to reverse its earlier decision, with immediate effect. We could have remained opted out from the EAW without violating any part of the Lisbon Treaty.

If the government suspended the acceptance of unevidenced EAWs with immediate effect, this would show that Mrs May really is serious when she says “Brexit means Brexit”.

Unfortunately, last week’s online Express carries articles showing that the government is actually going in the opposite direction. I quote:- “Britain will remain a part of Europol despite our exit from the bloc,” Policing Minister Brandon Lewis has told Parliament. This is not only “until we leave”, for He added: “The Government is exploring options for cooperation with Europol once the UK has left the EU.”

We must remember that Europol is not just an extension of Interpol; it is the embryo of what Helmuth Kohl called “a European FBI”. Once they get their boots on our soil we shall never be able to get rid of them, except by force, for they will only take orders from Brussels. The government surely has a duty not to let matters reach a state of armed confrontation. If we get signed up to Europol’s extended powers as is now suggested, and  we remain subject to the EU’s power to have any of us arrested and transported with no questions asked, we shall be always under the heel of Brussels. If Brexit means Brexit, this is unacceptable

This matter must be publicised, far and wide, beyond just the readership of the online Daily Express. The people must be told!

Brexiteers in Parliament, of whatever party, should raise their voices and demand that Mrs May must:

1) give a solemn assurance that we shall never ever under any circumstances whatsoever allow armed EU units to set foot on British soil;

2) suspend with immediate effect any unevidenced EAWs that are received in Britain.

EU coercive armed force coming in?

Last month, I read in the Italian media that the Commission wants to beef up Frontex – the EU’s border guards corps, and send them to places like Greece, or any other member state (presumably within Schengen) – even against the will of that member state. This is confirmed by the statement by the Swedish Interior Minister admitting as much in this article.

The frontier guards will of course be equipped with lethal weapons and will operate under the EU’s own flag, and be answerable only to Brussels.

It should be realised that their presence on the territory of a nation-state will therefore amount to a military occupation of that nation-state.

Once a bridgehead has been thus established by Brussels with the stationing of EU frontier guards in a member state, on the excuse that the state in question is unable to control its own frontiers, the road will be open for the European Gendarmerie Force to move in too.

The “United State of Europe” that the EU wants to build will clearly be based on the model of the centralised Napoleonic State, where the enforcers – i.e., the police – are always paramilitary, lethally-armed, and directly controlled by the central government. Thus their personnel are recruited nationally and then redeployed all over the territory, most usually not in their home towns, and housed locally in barracks. Thus, for example, the French Gendarmerie controls France, the Spanish Guardia Civil controls Spain, and in Italy there are three such bodies, the Carabinieri (military police), the Polizia di Stato (State Police), and the Guardia di Finanza (tax police – also militarised), all deployed all over the territory and each answerable to a cabinet minister (respectively, Defence, Interior, and Finance). Each nation is in effect under military occupation by its own central government. The machinery for a despotic form of government is thus pre-arranged, and readily available to a despot, when and if one comes along (as has happened all too frequently in European history).

So, likewise following the Napoleonic model, the United States of Europe is to have the Eurogendarmerie to control its own territory – ie the territories of what were once the nation-states. The embryo EuroGendarmerie Force (EGF), comprising the militarised police forces of six member states so far, is already up and running. If any should not believe it they can see the EGF’s own official website – www.eurogendfor.eu.

Compare and contrast to our British system, with 43 independent local constabularies, traditionally unarmed policemen, the concept of “policing by consent”, and so forth… Our system is designed to provide an obstacle to despotic forms of arbitrary government. We are the heirs to Magna Carta, which limited of the powers of the State over the people, while our continental brethren got the Inquisition instead, which expanded and deepened these powers.

I also read in the Italian media of renewed calls for the establishment of a European Public Prosecutor (EPP). This figure is the centrepiece of the Corpus Juris project, and he will be armed with fearsome powers of arbitrary arrest on no evidence and lengthy (months, or more) imprisonment without any public hearing. (These powers are already – and have always been – enjoyed by continental judiciaries, as British victims of the Euroean Arrest Warrant have been discovering to their bitter cost). The EPP will be the creature of the Commission who will doubtless nominate him, and the Commissioners may then, if they feel so inclined, use him to put away awkward people on trumped-up charges (quite easy since there is no need to exhibit any hard evidence for months, while the suspect languishes in jail…).

Of course Britain is not a member of Schengen and so our own government will doubtless tell us, smugly, that none of this need concern us.

However, if all of this has not yet come to pass, it is precisely because Brussels is aware that there is and there would be very strong opposition from the UK. They perceived this clearly from the negative reaction of Britain’s Parliament to the Corpus Juris proposal when it was first put on the table in 1999.

They realise that they cannot push this forward unless and until they have Britain locked into a position where we cannot say No.

They will now have this opportunity if the IN votes carry the referendum. For with a quisling, or at best a wavering, Cameron still in the saddle, clearly all British resistance to complete political, and legal, and indeed military, unification will be swept aside. They will say “THIS IS WHAT THE BRITISH PUBLIC WANTS AND VOTED FOR”.

Yet so far, the public is completely unaware of this precise threat to our democracy and to the personal freedom of each and every one of us, if the IN vote should carry the day. People think it is all merely about money, and prosperity. Yet was it not Jefferson who said “If a nation hands over its freedom in exchange for a perceived economic advantage, it will surely end up losing both”…?

It would be a tragedy if the vote was taken with voters in complete ignorance of these catastrophic consequences that an IN vote would unleash upon us.

At present, hardly anyone has any idea at all of these consequences. As far as I am aware, not one of the “leave” campaigning organisations has put these themes on the agenda.

Should not these matters be aired, and brought to the attention of the public, in good time before the vote?

Why Britain must repudiate the European Arrest Warrant

Justice photo

Copyright (c)  Torquil Dick-Erikson 2014

1) The EAW is unjust and oppressive, and tramples on our historic rights and freedoms

Habeas Corpus presupposes that any order to arrest a person must be based on evidence of a prima facie case to answer that has already been collected by the authorities. This requirement is negated by the EAW, which forbids UK courts from asking to see evidence collected by the requesting state. The reality is that under the Napoleonic-inquisitorial systems of criminal justice used on the continent, suspects are arrested on the basis of mere clues, and most of the investigation to seek evidence is conducted with the suspects under lock and key. This can last many months, and there is no right to any public hearing during this time. This cannot happen under British procedures, where Habeas Corpus ensures that within hours of arrest, a suspect must be brought into an open court hearing and there charged, with evidence already available to be shewn.

 

2) It is based on a false conception – that the European Convention on Human Rights gives equivalent protection to our rights in all EU countries.

Neither the governmentt nor even the legal profession has conducted any systematic research into continental criminal law systems. They all rely (lazily) on the fact that all EU states are signed up to the ECHR, and this is supposed to guarantee the fairness of their systems and their worthiness of recognition by our own. It is (presumably) supposed that the matter of evidence need not be examined by a British court, because the foreign court can be relied on to deal with it adequately and fairly.

The trouble with this is that the ECHR is vague and woolly in its wording, and totally inadequate when compared to the safeguards provided by our own Common Law system. For example, article 6 says a prisoner has a “right to a public hearing before an impartial tribunal in a reasonable time”. But it doesn’t say what is “reasonable”. This can be as long as a piece of string. For us it is hours after arrest. In Italy, for example, and in the EU’s Corpus Juris proposal for a single criminal code for all Europe, it can be up to six months, extensible. During this time there is no right to a public hearing. The time is used by the investigators to interrogate the suspect in prison, and to try to build a case against him. 

 

3) It will give the EU the key power of statehood – arbitrary physical coercion over our bodies

 Only a State has the right to arrest someone and put them in prison, depriving them of their liberty. If anybody else does it, it is a kidnap, and kidnappers are common criminals. By giving the EU this power – which is henceforth to be submitted to the jurisdiction of the ECJ and the enforcement powers of the Commission, so placed quite beyond the reach of our Parliament – we will effectively be granting it Statehood.

By granting the EU the power to have people arrested in Britain on no evidence, we grant them the power to exercise physical coercion over us quite arbitrarily. The real reasons for arresting a person may be quite different from the ones ostensibly stated – ie the charges can be trumped up. Their purpose could be political.

 

4) The European Public Prosecutor will be able to use it against us (despite our opt-out)

The idea of “mutual recognition” by EU states of one another’s legal systems was originally put forward at Tampere in 1999 by Jack Straw as an alternative to the Corpus Juris proposal for a single system of criminal justice imposed on all (which he realised would be immediately unacceptable to the British people). The EAW is the first fruit of this idea. However the very first mention of a “European Warrant for Arrest” is actually in Corpus Juris itself (see below).

What seems to have escaped notice in Britain is that the EAW is not a permanent alternative to Corpus Juris, it is a stepping stone towards it. The centrepiece of Corpus Juris is the establishment of the European Public Prosecutor (EPP). Corpus Juris is the rule-book that defines his tasks and his powers. At least nine EU states are going ahead anyway with the EPP, under enhanced cooperation, though the UK has opted out.

However, our opt-out can be, and doubtless will be, sidestepped as have some other opt-outs in the past. Article 24.1.b of Corpus Juris (original edition, 1997) provides that “a European Warrant for Arrest, issued on the instructions of the EPP by a national judge… is valid across the whole territory…”. Obviously, since Britain has opted out of the EPP proposal, the EPP will not be able to instruct a British judge to issue an EAW. But he can order, say, a Belgian judge to issue one against a person in the UK. Unless we repudiate the EAW now, the British police will receive the EAW from Belgium, and will simply have to execute it, with no questions asked. The person will be trussed up and shipped over to Belgium, where he will await the pleasure of the Belgian judge, who will doubtless hand him over to the EPP, and there he will languish, under lock and key for up to six months, extensible by three months at a time (Corpus Juris, art. 20.3.g), and with no right to any public hearing during all this time.

Our own lawyers may well opine that “this would be an illegitimate use of the EAW”, but unless we repudiate the EAW now, the entire matter will be subject to the jurisdiction of the ECJ, so out of our hands. And as we know, the ECJ’s mission statement says its decisions must always further the aim of “ever-closer union”…            

It is not yet known who will have power to appoint the EPP, but it is highly likely that the unelected Commission, which holds the monopoly of legislative proposals in the EU, will have a say. Doubtless there will be some statement in the legislation to say that the EPP “must be impartial and independent” but he will surely feel beholden to whoever it was who selected him, and who will doubtless have a say in his re-selection when his term comes to an end.

 

5)  Its supposed advantages are non-existent for Britain

It is said by its apologists that the EAW is good for Britain because it enables us to obtain the speedy extradition of our own criminals who have taken refuge in other EU countries (and by the way, if we controlled our own borders this would not be so easy for them). Now our own police and crown prosecution service will never request the arrest of someone (whether inside or outside Britain) unless they have already collected enough prima facie evidence against him. They do this anyway, and they did it before the EAW – they would send an extradition request with an indication of the evidence against the suspect. They would continue to do it after the EAW was repudiated and we reverted to the previous arrangements. Our own procedures would not change. The difference would be that the foreign prosecutors requesting us to extradite someone would also have to provide evidence against the wanted person. At present they can have people extradited on a mere whim, or a hunch, or a “feeling” that the person in question is guilty, they do not need to shew any hard evidence.

The subtext of what the apologists for the EAW are saying is actually that, unless we continue to allow the foreign authorities to haul over anybody they fancy, providing no evidence, then they will retaliate, and put up all sorts of difficulties when we request an extradition from them. Even though our extradition requests are furnished with serious evidence. If this is really how they would behave, then they would be behaving in a petty and spiteful manner, and their behaviour would amount to blackmail. The British response to any type of blackmail should surely be robust. 

 

6) It will have good political traction with the public

It is said that arrests and extraditions only affect a tiny minority of the public, so people are not too concerned about it. It would thereby not be worth investing political capital in this matter. As long as we have confidence in the justice system under which we live, so that only real criminals are badly affected, this consideration may well be true.

However, one of the reasons to be proud to be British, is that British people actually do care when they see an innocent person wrongfully locked up. We do not just shrug and say “Well, that’s tough, but that is how the cookie crumbles”. On the whole we tend to get indignant, and we say “That is not how the cookie should crumble, and if it does, we damn well need to change it.” Hundreds of years ago, the English poet William Blake summed up the national feeling when he wrote, “A robin redbreast in a cage, Puts all heaven in a rage”. British people know, in their bones, that freedom from arbitrary arrest and wrongful imprisonment is important. Indeed it is important enough for past generations to have fought wars and laid down their lives to prevent it happening to us in our own country. Freedom and fairness are the values inscribed on our banner, in our laws, and in our hearts. We may be a “nation of shopkeepers” and we do realise the importance of economics, but we also cherish higher values than money (and indeed without freedom economics languishes).

At present people in Britain are accustomed to enjoying personal freedom and the safeguards of British law such as Habeas Corpus and Trial by Jury, as much as they are accustomed to breathing air without having to pay for it. Some are perturbed at some of the cases thrown up by the EAW, but overall they have accepted – so far – the bland reassurances by the politicos regarding the ECHR (“you know the Convention was drawn up largely by British lawyers…”), and by the unspoken assumption that the other EU countries are politically democratic and so surely must have fair and democratic criminal law systems too, even though not quite as scrupulously applied as our own. So they do not feel immediately threatened. They are like people lying on a beach facing the land and not seeing the tsunami wave rushing in from the ocean to drown them all. We just need to give them the facts, ie tell them to look over their shoulders towards the sea. When they see the tidal wave coming, they will react, just as they did in 1940. 

 

7) Repudiating it will not require the government to breach the Treaty, so no renegotiation is needed.

It seems to be insufficiently appreciated that this is an open goal. Under Lisbon, our government and Parliament were entirely at liberty to exercise the block opt-out from the 130 Justice and Home Affairs measures listed. They have done that, despite the shrill protests from Commissioner Reding. And now it is entirely up to us to choose freely which measures to opt back into, or not. No negotiation is needed. No permission or agreement from any EU body nor any other EU state is required. Opting back in is an entirely voluntary act. 

 

8) Not to repudiate it will make a mockery of Cameron’s stated aim to “claw back powers from the EU”

 In view of the above, the government’s stated aim to opt back into 35 of the JHA measures, including the EAW, makes a mockery of Cameron’s other stated aim to “claw back powers from the EU”.

Especially since the EAW is the ace of trumps, it is the key state power trumping all others, it will grant de facto statehood to the EU.

 

9)  Not to repudiate it will make a mockery of the Magna Carta celebrations currently planned by the government.

800 years ago, England made a major contribution to human civilisation, by beginning a process of limiting the power of the State, putting constraints on the power of the king. There is a general awareness in Britain today, and in the English-speaking world that shares our traditions, that in 1215 we did something good and important, and worth celebrating.

But we must also realise that at the same time, in continental Europe the Pope was setting up the machinery of the Inquisition, which vastly extended the power of the State over the individual. Only England to a fair extent escaped the ravages of the Inquisition during the centuries that followed. The EAW, and then Corpus Juris, by submitting us to the writ of continental prosecutors and judges, and of the EPP himself, will bring us under the sway of a Europe that uses the Napoleonic-inquisitorial method. Thus we shall be terminating 800 years of our own distinctive legal history, where the law has also been a shield for the individual against the otherwise overweening power of the State, instead of merely a weapon for the ruler to impose his will on the people.