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.