July 19, 2019

Criminal Justice

Leaving the European Union offers us a chance to escape from the EU’s plans to impose a very alien justice system on all member states, including the UK.

The UK* is blessed with a bottom-up legal system known as Common Law. It insists that government rests on the consent of the governed – in other words, rulers are accountable to their subjects. The American legal scholar J. Reuben Clark Jr. (1871-1961) highlighted its virtues: “The sovereign power in a Common Law system rests exclusively with the people. Individual rights, by extension, become a fact of daily life that cannot be breached by an aspiring tyrant without bloody consequences. Over time, this system of judge-made law allows for the gradual development of an organic legal framework whilst minimising encroachments upon individual rights.” Common Law’s insistence that rulers only rule by the consent of the people and their inalienable liberties has clipped the wings of several monarchs who tried to flout the system. King John, for instance, was humbled by his barons when he taxed them too much. They rebelled against him and forced him to sign a document at Runnymede which they claimed would re-establish “the ancient liberty of church and kingdom.” This document – the Magna Carta – or “great charter of the liberties of the people” laid the foundations of Parliamentary democracy as far back as 1215.

Under Common law, power ultimately rests with the people. A different legal system dominates the European Continent. While there are many differences between, say, French and German law, they, along with other similar legal systems, owe much to Napoleon’s law code, which in turn was based on Roman law. Under these systems, again to quote J. Reuben Clark: “The sovereign power rested in the head of the state, who granted to the people, his subjects, the rights he decided they should have, reserving any other rights in himself, as likewise the right to extend, alter, add to, or withdraw these rights already granted.” In other words, continental law is a top-down system where the state, be it an absolute monarch like an ancient Roman emperor, or the government of a modern country like France or Germany, is the ultimate source of power, granting only such freedoms to the people as it deems fit. A change of ruler can therefore mean a change in the boundaries of freedom. The concept of inalienable liberties that no ruler can take away is unknown across most of the Continent. This top-down mindset unsurprisinglycolours the thinking of the European Union institutions as a whole – the authorities know best.

The fundamental difference between the two systems expresses itself in various ways. Take, for example, the role of the police. A British policeman may appear to exercise a similar function to a continental gendarme, but scratch beneath the surface and there are some significant contrasts. As Christopher Gill, one of the former “Maastricht Rebel” Conservative MPs explains, “The tradition of British policing has been to protect individuals and their property from criminal activity and to apprehend those who transgress whereas on the continent police act almost like an army of occupation, responsible for public order enforcement, crowd control and generally buttressing the authority of the civil state as opposed to defending the freedom of the individual citizen”.

In our country, the police are, in theory, on our side, to work on our behalf and deriving their authority from us, whereas continental police are an extension of the state. It is hardly surprising that, when EUGENDFOR – a pan-European Gendarmerie – was established, the UK government initially wanted nothing to do with it. Sadly, in 2013, this wise principle was compromised, and a limited authorisation was granted for foreign police to operate in the UK. There has, as yet, been no commitment to revoke this authorisation in spite of the Brexit vote, but why? Our own police are perfectly competent to tackle foreign criminals operating in this country.   .

We are also being sold down the road with the desire of Amber Rudd, the Home Secretary, to keep us tied into the European Arrest Warrant (EAW), thus exposing UK citizens to the inadequacies of continental justice. No one would deny that, with criminals able to cross national boundaries with relative ease, national police forces must co-operate, share intelligence and have a robust mechanism for extraditing criminals from one country to another, but the EAW is not the answer. In the summer of 2013, Theresa May, who was Home Secretary at the itme, announced that the UK would opt out of all 133 law and order measures included in the Lisbon Treaty, but then stated her desire to opt back into 35 of them, including DNA sharing and the EAW. Although this “opt-in”, which was finally passed by Parliament in 2014, has the support of some senior policemen, there are better ways for our police to co-operate with their continental counterparts than by participating in the EAW scheme. It could result in UK citizens being extradited to another country and charged for an offence that is not a crime here.

Because relatively few people in this country end up in court accused of a crime, most of us are unaware of the checks and balances in our legal system which protect us against false accusation, arbitrary arrest and wrongful imprisonment. Given that these are lacking on the continent, any UK citizen charged under a European Arrest Warrant can find himself exposed to a very defective criminal justice system . Under Common Law, defendants have a right to silence. No one may be tried in absentia – in other words without being present in court. Press coverage is restricted when a case is sub judice so as not to prejudice a fair trial. Most importantly, except where terrorism is involved, any person who is arrested must be charged in open court within 24 hours of arrest. Crucially, the charge has to be backed by prima facie evidence as opposed to hearsay. Even when the suspect is thought to have committed murder, detention without charge may only be extended, with the permission of magistrates, to a maximum of 96 hours.

Given that these safeguards often do not exist on the continent, it is possible for a UK citizen to be tried in another EU state without being present at the trial or even knowing that the trial is taking place, convicted on hearsay evidence and then surrendered by the UK authorities if an EAW is issued. It is a frightening scenario, as several UK citizens have already discovered. Edmond Arapi was subject to an Italian EAW in 2004, being convicted in absentia of a murder in Genoa, even though he had never visited Genoa in his life and was working in a café in Staffordshire on the day of the murder. Andrew Symeou, a UK citizen, was extradited to Greece, denied bail and incarcerated for 11 months on charges of “fatal bodily harm” thanks to the signature of a Greek magistrate that no UK judge could overturn despite the evidence against him being obtained under duress. Mr Symeou published an account of his ordeal in a book called Extradited. He pointed out that unless, like him, you suffer from a miscarriage of justice, you are unlikely to appreciate just how flawed the EAW is.

Both Rudd and, apparently, Mrs May, are keen to see the UK remain a member of Europol – the EU’s intelligence-sharing agency, which could allow data relating to innocent UK citizens to be shared with a foreign power. This is unacceptable.

David Cameron, while he was Prime Minister, once stated that he desired that “UK police forces and justice systems are able to protect British citizens, unencumbered by unnecessary interference from the European institutions.” On Brexit, we should reinstate the stautes of Praemunire, first passed in the 14th century and only repeal in the run-up to our joining the EEC.  These ancient laws prohibited the assertion or maintenance of any foreign or alien jurisdiction or claim of supremacy in England, against the supremacy of the monarch. For Brexit truly to mean Brexit, our country must be sovereign in legal and judicial matters and only to cooperate judicially through membership of international bodies like Interpol, which do not seek to encroach on national sovereignty.

* Scotland and Northern Ireland have different legal systems, but many of the same principles apply
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