Siol nan Gaidheal
‘CORPUS JURIS’ AND ITS EFFECT ON SCOTTISH COMMON LAW RIGHTSEU PROPOSALS TO GET POWERS TO ARREST AND DETAIN SCOTTISH CITIZENS ON SCOTTISH SOIL, UNDER THE CONTINENTAL (NAPOLEONIC CODE, aka THE INQUISITORIAL) SYSTEM OF LAWS
Scotland in company with England, Wales and N. Ireland has a unique system of parliamentary democracy backed by our Common Law. The latter has been adopted, in various forms, by other English speaking nations, notably the USA, Australia, New Zealand, Canada, Eire, and Malta. Our legal system is unique in that it embodies our concept of the individual's freedom (Power of the People as embodied in our Common Law) and makes our laws quite different to those of our friends in Continental Europe. These ancient rights (Won at a fearsome cost by our forebears) are now under imminent threat from Brussels under a proposal known as 'Corpus Juris' (Hereafter referred to as ‘CJ’).
HOW OUR LAW DIFFERS FROM THAT OF CONTINENTAL EUROPE
Our Common Law, states that a citizen can only be judged by his peers. These rights protect the individual against arbitrary conviction and imprisonment. Our Common Law recognises several vital rights to the citizen: Although Magna Carta is not applicable in Scotland, certain sections have been incorporated into the main body of Scots law during the time of Robert the Bruce, and his successors. It has much to do with the concept of Personal Freedom, so that in Scotland you are free to do anything that is NOT expressly forbidden by Law. On the Continent all things are forbidden unless expressly permitted, hence the new Declaration of Human Rights to cover grey areas of the law.
1. The accused must be taken to a public court within a very short period of time, usually 24 hours, and the accusers must produce their evidence there and then). This is known as Habeas Corpus and was incorporated into Scots Law hundreds of years ago in the late 17th Century and has been a mainstay of Scots Law ever since.
2. The Right to remain silent. This is fundamental in Scots law, as the prosecution has to prove the accused is Guilty beyond any reasonable doubt. The Accused has the right not to take the witness stand especially if faced by an intimidating prosecutor.
3. The Right to have Legal representation present during interrogation by the Police or other Officials of the Court.
4. The right to Trial by a Jury of one’s peers, at which jurors can in fact even disregard the law if they think it would give an unjust conviction. The jurors are thus 'sovereign' and their verdict of Guilty cannot be overturned by the Sheriff or High Court Judge except by appeal to the highest court in the land.(Witness the recent acquittal of Greenpeace Environmental protestors last year.)
5. In Scotland you MUST be brought to trial within 110 days or the case must legally be dropped.
6. If found innocent, the accused cannot be tried again on the same charge ('double jeopardy').
To put this simply, our Legal process is as follows:
SUSPICION that an offence has been committed,
INVESTIGATION to find grounds for that Suspicion.
ARREST of the Suspect by the Police who submit a Report to the Procurator Fiscal.
CHARGE if the Procurator Fiscal finds that the evidence of Law breaking is there.
TRIAL Within 110 Days.
RETRIAL for the same offence is NOT PERMITTED!
Under the Continental system, known as the Inquisitorial System (often loosely referred to as the Napoleonic code) things are done quite differently:
SUSPICION that an offence has been committed,
ARREST of the Suspect by the Police who submit a Report to the E.U. Appointed Public Prosecutor.
INVESTIGATION to find grounds to sustain that Suspicion.
CHARGE if the Public Prosecutor finds that there are Grounds for a charge.
TRIAL which can take place, without limit of time Years later.
RE-TRIAL for the same offence if Prosecution Appeals acquittal.
In short, the citizen can be arrested and imprisoned for up to NINE MONTHS! without anyone having to produce any evidence against him.
The accused (who is automatically assumed to be Guilty) Is incarcerated in Prison and must then undertake a very costly process of obtaining a court hearing to set bail. No Habeas Corpus so one can be imprisoned for very long periods (weeks, months, occasionally years) without any evidence being produced against him or her.
7. The Right to remain silent. This fundamental tenet of Scots law, is viewed entirely differently and the Public Prosecutor and the Judge may assume that silence denotes guilt.. The Accused has the right not to take the witness stand but this again can be construed as an admission of Guilt.
8. The Accused has NO RIGHT to have Legal representation present during interrogation by the Police or other Officials of the Court. Any Confession made under duress is almost impossible to deny in open court.
9. The Accused has no Right to a Trial by Jury of his peers, which is an alien concept in Europe and furthermore is tried by a Judge who is regarded as part of the Prosecution process. Their system involves judgements being made by a career judiciary who are the judges and prosecutors and who are, to all intents and purposes, 'colleagues' (a quite separate body of lawyers makes the defence and are often treated as inferiors). It should be noted that some European Countries have Partial Juries who are ‘Instructed’ on how to vote, by the Judge summing up the case in the Jury room and this has rightly been condemned on the grounds it is not impartial.
10. If found innocent, the accused CAN be tried again on the same charge ('double jeopardy'). In most instances the accused can be tried a second time for the same offence, since the prosecution has the right of appeal against acquittal.
Let us consider a fictional case history under the two entirely different systems.
CAST OF CHARACTERS
(The characters are a figment of my imagination and bear absolutely no resemblance to anyone, Dead or alive. I Think!?!?)
James Black aka ‘Jeemsie’, a small time Crook and drug peddler.
Roddie Smith aka ‘Razor’ another small time crook and Drug Addict.
Mrs McBlether general neighbourhood busybody and poker of noses into other folks business.
Mrs Prattle, Close friend of above and nose poker extraordinaire.
Constable Clueless the local deadbeat Bobby. He Becomes Inspector Clueless of Europol.
Mr McNailem the Procurator Fiscal. He becomes Prosecutor McNailem of the European Prosecution. Sheriff Dreadful. He becomes Euro judge Dreadful under C.J.
Jeemsie is walking along the road when he meets his old pal Razor. ‘Huv ye got a licht?’ he asks Jeemsie ‘Aye’ he replies and takes a box of matches out of his pocket and passes it to razor. ‘Ta mate’ and he gets out a packet of fags and lights up. However Mrs McBlether and her long time friend Mrs Prattle observe Jeemsie pass something to his Pal Razor and immediately jump to the conclusion that Drugs have been passed. Just at the moment, Constable Clueless comes along ‘Afternoon Mrs McBlether, Mrs Prattle fit like?’ The two women tell him they saw Jeemsie pass a package to Razor and Constable Clueless, knowing their form arrests the pair on suspicion of trafficking in forbidden substances. Back at the Station, the pair are searched and no drugs are found, but they are cautioned anyway. The case is passed to the Procurator Fiscal Mr McNailem who decides to take the pair to court anyway. On the Morning of the hearing, the Sheriff listens to the evidence and listens carefully to the defence outlining that only a box of matches had changed hands and no drugs were found. Sheriff Dreadful looks at the Prosecution evidence and gives the verdict ‘NOT GUILTY’
Second Case study under Corpus Juris.
Jeemsie is walking along the road when he meets his old pal Razor. ‘Huv ye got a licht?’ he asks Jeemsie ‘Aye’ he replies and takes a box of matches out of his pocket and passes it to razor. ‘Ta mate’ and he gets out a packet of fags and lights up. However Mrs McBlether and her long time friend Mrs Prattle observe Jeemsie pass something to his Pal Razor and immediately jump to the conclusion that Drugs have been passed. Just at the moment, Inspector Clueless of Europol comes along ‘Afternoon Mrs McBlether, Mrs Prattle fit like?’ The two women tell him they saw Jeemsie pass a package to Razor and Inspector Clueless, knowing their form arrests the pair on suspicion of trafficking in forbidden substances. Back at the Station, the pair are searched and no drugs are found, but they are remanded in custody. The case is passed to the Office of the Public Prosecutor Mr McNailem who decides under CJ there is enough evidence to get a conviction. Nine months later after being charged they appear in court to find that the Court has appointed a Solicitor to defend them. Euro Judge Dreadful listens to the evidence and listens carefully to the defence outlining that only a box of matches had changed hands and no drugs were found. Sheriff Dreadful looks at the Prosecution evidence, The accused refused to give a statement, remained silent, would not take the stand, and the Two witnesses Mrs McBlether and Mrs Prattle were fine honest upright citizens whose evidence is solid, the Accused had previous ‘Form’ and gives the verdict ‘GUILTY ‘TWO YEARS APIECE less the 9 MONTHS already served.’
You might think this is extreme, even farcical, but 5 Lawyer friends have examined this fictional case history and agree that a miscarriage of Justice is more likely under Corpus Juris.
WHAT IS CORPUS JURIS?
Corpus Juris involves the introduction of a European public prosecutor, with delegated public prosecutors in each country with power to instruct national prosecutors, the use of Europe-wide arrest warrants, detention for up to six months without a public hearing, renewable for three months, trial by professional judges with no automatic right of public access to the trial and the possibility of appeal against acquittal. The right of habeas corpus and trial by jury, the fundamental principles of British justice for nearly 800 years, is, at a stroke, abolished. Corpus Juris also requires the setting up of a European Police Force with the authority to act in any member country. This force is known as :
The Maastricht Treaty introduced little known aspects of EU integration referred to as "co-operation between member states in justice and home affairs". These were reinforced by the Amsterdam Treaty. Under these provisions Europol, a Europe wide police force came into being on the 1st July 1999 under the oversight of its first director Jurgen Storbeck. Europol is based in the little town of Sheveringen near the Hague, in a former Monastery converted into a SS Barracks in 1941. It has very wide powers but is not answerable to any elected body. It reports to a special committee appointed by the Council of Ministers. It exists ostensibly to fight crime, but it has a much wider function. Not only will it collect and store information on known and suspected criminals, but also on anyone's political and religious beliefs and activities. There are three large databases already in being and a Europe wide Database of Fingerprints is being created now. Recently the UK Home secretary indicated that the Laws on retaining Fingerprints would be changed. E.U. Commissioners are pressing for an E.U. Wide Database of Fingerprints and they are actively considering a Database of DNA Samples at some future date. The setting up of such large databases is specifically allowed and provided for under the Maastricht Treaty. More Information on Europol will be found in the next version of ‘Brathair Mor an Eorpa.’ On 13th April 2000, the European Parliament voted overwhelming in favour of Corpus Juris. There were a total of 4 votes on the proposal and at no stage did a single Conservative MEP vote against any of them. Only two Labour MEPs voted against.
HOW DID THIS PROPOSAL COME ABOUT?
In April 1997 a seminar was held in San Sebastian, Spain, to discuss a proposal for the 'Criminal protection of the financial interests of the European Union' (CJ) under the auspices of the Directorate General XX of the European Commission. (The very same directorate responsible for the mishandling of the Fraud cases uncovered by Mr Van Buitenan).
The proposed European Union code for conducting criminal procedures known as Corpus Juris was originally requested by the European Parliament and compiled by a group of "academic experts" under the aegis of the European Commission. Corpus Juris was first presented by the European Commission to a specially invited audience at a Seminar of the Instituto Europeo de España held on 17th and 18th April 1997, in San Sebastián, Spain.
The objectives of this Seminar were described in the official programme as follows:
‘Firstly: it seeks to call the attention of jurists in general to the need for effective protection of the Community budget, particularly in connection with fraud against subsidies; and Secondly: the organisers wish to make known the content of the CORPUS JURIS for protection of these financial interests which has been conceived as the embryo of a future European Criminal Code."
Subsequently there have been numerous attempts at denying that the European Commission has been involved in these proposals and that the meeting was just a non related discussion group.
THE PROPOSALS AIM TO:
Introduce a "single legal area" within the European Union. Each E.U. Member will have the same basic system of Laws, so that what is illegal in Germany is also illegal in Scotland and Vice Versa.
Introduce a European Public Prosecutor ("EPP") with national public prosecutors being "under a duty to assist" him or her (Article 18.5).
There will be a "Judge of Freedoms" whose function is ostensibly to protect the citizen's rights, which however do not include the right to demand that evidence be produced. This means, of course, that an enforceable arrest warrant can be granted without there actually being any evidence at all, since there is no right to verify it at that stage.
A European Warrant of arrest shall be issued by a national judge on "instructions" of the EPP, and any police force in any member State shall be required to enforce it.
A suspect can be imprisoned without charge for 6 months, renewable for a further 3 months without any limit to the number of renewals.
The 'trial' shall be heard by professional judges, specifically without "simple jurors" or "even lay magistrates" (a clear and specific reference to the British and Irish trial systems where the crucial decisions are taken by ordinary people).
An accused can be retried on the same charge if found innocent (i.e. the prosecution can appeal against an acquittal).
WHY HAVE WE NOT HEARD ABOUT IT BEFORE NOW?
In March 1999 Lord McIntosh of Haringey said in answer to a question in the Lords, "Corpus Juris has never even been considered by the institutions of the EU". But, in November 1997, Directorate XX of the Commission had held a conference of 140 lawyers in San Sebastian specifically to discuss Corpus Juris, commissioned by the European Commission, has already been published. There has been little or no detailed discussion of CJ in the Media and there has been a lot of confusion amongst MP.’s as I shall show:
On 22nd April 2000, addressing the European Parliament's Civil Liberties Committee, Kate Hoey again expressed her opposition to Corpus Juris. She seems to believe that the UK retains a right of veto but, as soon as the Amsterdam Treaty came into force on 1st May, Article 280 allows measures against fraud to come in by Qualified Majority Voting (quite why Kate Hoey remains unaware of this is hard to explain, as Mrs Theato, Chairperson of the Inter-Parliamentary Conference on Corpus Juris announced the intention to use Article 280 over six months ago). In the unlikely event that the UK went to the European Court of Justice to claim that this interfered with the "national administration of justice" it would be amazing if the ECJ overturned this move towards ‘ever closer union’.
CAN IT BE IMPOSED ON BRITAIN?
Speaking for the government in Parliament Kate Hoey MP stated that CJ proposals would infringe on civil liberties and could not be introduced into Britain as the government would veto any such move. The full text of her report follows :
9th REPORT, SESSION 1998-99:
PROSECUTING FRAUD ON THE COMMUNITIES' FINANCES-THE CORPUS JURIS
Letter from Kate Hoey MP, Parliamentary Under Secretary of State, Home Office to the Chairman of Sub-Committee E
I welcome this Report, which provides an extremely useful insight into the complex area of prosecuting fraud on the Communities' finances, and Corpus Juris. Although the Report makes no formal recommendations for action by the Government, the Committee's Opinion raises a number of points on which I would like to offer comments.
First, the Government welcomes the Committee's conclusion that Corpus Juris is not a realistic way forward, and agrees with the Committee's view that energy and resources would be better directed towards improving mutual legal assistance and practical co-operation. The Government recognises the need for further review and up-dating of the arrangements in the UK for mutual legal assistance (MLA). The Government also accepts the suggestion that co-operation could be facilitated by a greater understanding by practitioners of each other's laws and procedures. For this purpose the Judicial Co-operation Unit at the Home Office has prepared a revised edition of the guidelines to assist judicial and prosecuting authorities abroad wishing to seek legal assistance from the UK. These will be published on the Internet.
The Government also welcomes the Committee's support for the UK's discussion paper on mutual recognition. Having sought other Member States' views on the paper, we believe that it will a central theme at the Tampere European Council in October. On a more practical level, the Finnish Presidency is currently drawing up an annual work programme that will set out a structured timetable for consideration of the UK's proposals. The Government also intends to pursue the Committee's concern about possible discrimination in the application of remand and bail rules where the accused is from another Member State, as part of the follow-up to the mutual recognition paper.
On Fiscal Liaison Officers, the Government shares the Committee's view that serious consideration should be given to extending the network, and will take that view into account when considering resources. Her Majesty's Customs and Excise have recently obtained funding from the European Union under the Falcone programme for a Fiscal Liaison Officer to be seconded to the Italian Guardia di Finanza for six months. The officer will examine the viability of a permanent attachment of a second officer to Italy.
Finally, the Government welcomes the Committee's comments on the importance of reforming the Commission and its internal procedures for investigating fraud. I am pleased to be able to report that on 1 June the European anti-fraud office was established along the lines called for by the UK. There is still much more work to be done, and the Government will press the new Commission to implement root and branch reform. In order to achieve this the new Commission President, Romano Prodi, has recently appointed Neil Kinnock as the Vice-President for administrative reform and has promised that he will present a programme of far-reaching reform to the Council by February 2000. We expect that this will include reinforcement of the Commission's fraud-proofing policy.
23 July 1999
The House of Lords is the only public body in Britain to have reviewed CJ in detail (See House of Lords, 9th and 19th Reports, 1998/99 session). Some of the findings were:
They interviewed two EU representatives who stated that CJ could, and will, be introduced under Article 280 of the Amsterdam Treaty (pages 84 and 85, 9th Report). Article 280 provides for Qualified Majority Voting so Britain will have no veto.
Advice from the Law Societies of both England and Scotland stated that CJ was unacceptable.
In the second House of Lords report on page 73, Jack Straw, Home Secretary, stated that he was unaware of any proposals for the introduction of Justice & Home Affairs measures by Qualified Majority Voting - presumably he never read the earlier report !!!
House of Lords report.
SUBMISSION TO THE HOUSE OF LORDS EUROPEAN COMMUNITIES COMMITTEE (SUB-COMMITTEE E) on the E.U.’S PROPOSAL FOR A CORPUS JURIS
specifying crimes and penalties and providing for the establishment of a European Public Prosecutor for the prosecution of fraud upon the Communities’ finances.
THE MAJOR LEGAL, POLITICAL AND PRACTICAL IMPLICATIONS OF CORPUS JURIS
We have no way of stopping Corpus Juris, within the Treaty arrangements.
1) Corpus Juris will drive a destructive wedge into the British judicial system, for its principal provisions are in irreconcilable conflict with fundamental tenets of British law - such as Trial by Jury and Habeas Corpus, both of which it would abolish within its sphere of competence. The arrangements provided by Corpus Juris would mean suspects could be arrested and held (or transported around Europe at will) with no public hearing and with no obligation on the prosecution to produce any evidence, for indefinite periods of time. (CJ, Arts. 20.3-g, 24.1-b, 25.2, 25.3, 26.1, inter alia).
2) The declared intention of its proponents is precisely that it shall be the thin end of a wedge - or as they put it, the "embryo of a future European criminal code" (cf. the printed programme of the Seminar in San Sebastian, Spain, April 1997, and the conclusion of the message to the Seminar from the President of the EU Parliament).
3) Since Corpus Juris is designed and presented as a "measure against fraud", the provisions of Article 280 (formerly 209a) of the Treaty of Amsterdam will apply; these include reference to Article 189b as the procedure whereby such measures may be introduced. This procedure provides for co-decision between the Parliament and the Council of Ministers, and within the latter decisions are taken by Qualified Majority Vote. No veto will therefore be available to the UK.
4) This is not merely a theoretical possibility. The EU Commission President, Mr Jacques Santer, together with Mrs Theato, Chairperson of the Inter-Parliamentary Conference on Corpus Juris held in Brussels on 9-10th November last, "announced their firm intention", in conclusion of the said conference, to utilize precisely Article 280 of the Treaty to introduce Corpus Juris. "The creation of the European Public Prosecutor is unavoidable", they said. (Note on the proceedings of that Conference written up by Dr C. Kerse, Legal Adviser, H of L)
5) Article 280 contains a so-called "safeguard" that the measures "shall not affect the national administration of justice". In an "opinion" given to the Committee on Civil Liberties and Internal Affairs of the EU Parliament on 2 December 1997, Mrs Theato (who later chaired the Inter Parliamentary Conference, see above) explained how this "will be circumvented", in that "it covers only the law currently in force in the Member States, which may not be repealed or amended by Community law; it does not however prevent the Community from introducing supplementary legislation ..." ("Opinion" appended to "Report on judicial cooperation in criminal matters" dated 11/2/98, N° DOC_EN\RR\346\346115, page 23).
6) Any dispute as to the applicability of this "safeguard" will be "adjudicated by the EU Court" (as laid down by the Treaty of Rome), on whose lap the preservation of our civil liberties will rest; within the bosom of this Court the UK certainly has no veto.
7) The only reason why they are not able to do this immediately is because the Treaty of Amsterdam has not yet been ratified by all 15 Member States, so Article 280 is not yet operational. Forecasts are that ratification procedures will be completed by all signatories by the spring of 1999. At that point they will be in a position to put forward Corpus Juris and to have it adopted as a "common position", binding on all, even a UK that was 100% against it. We have no reason to think that they will not do this at once; the requisite majority has already been verified at the Conference (14 to 1 in favour). The provisions of Corpus Juris embody the features of the Inquisitorial system which the nations of the Continent have been subjected to for centuries, and so they are quite accustomed to it. Comparative criminal procedure is hardly studied in any Law faculty anywhere in Europe. It is likely that they seriously underestimate the trauma that the introduction of this system would cause to the inhabitants of the British Isles.
8) In conclusion, we have no defence against it, within the Treaty arrangements.
Perhaps HMG should start to consider the only alternative option available when Corpus Juris is proposed - which would be to leave the European Union. Only a stance by the UK which included contemplation of this alternative in a way credible to our partners, might make them desist from their intention of introducing Corpus Juris at the earliest opportunity. However, as long as Article 280 remains in the Treaty, it will always be a sword of Damocles hanging over our heads.
WHEN MAY CJ BE INTRODUCED?
Basically at any time now that the new European Commission has been established.
In March 1999 the European Parliament "welcomed CJ" in principle with support from all Britain's MEPs bar two Labour MEPs. Subsequently the Conservative MEPs claimed that they had voted the wrong way by mistake! Presumably the Labour and LibDem MEPs meant to support the CJ proposals, although Tony Blair has not yet been asked why his MEPs all flouted his government's stated policy which is to reject CJ. One of the motions approved stated that CJ could be applied to 'serious crimes', undefined of course, opening the door to CJ being applied to areas outside EU fraud.
On 11 Sept 1999, the 'Wise Men', who had previously revealed fraud in the European Commission, recommended that CJ be introduced in a three step programme - clearly designed to sugar the pill so that the UK will swallow it:
Step 1: should just apply to the European Commission and its employees
Step 2: establish a Prosecutor's office in each member state to work with the national police & courts
Step 3: link the central and peripheral offices and establish a European Prosecutor's office after holding an Intergovernmental Conference which would clearly be to ratify the introduction of CJ
Mrs Diemut Theato, a German MEP, had asked for the introduction of a European Public Prosecutor to be part of the package of EU Treaty changes discussed and approved in last year's Inter-Governmental Conference at Nice in December 2000.
CAN CJ BE STOPPED?
As the present circumstances stand. NO! CJ can be brought in under Article 280 and Article 280A regardless of whether we try to Veto it or not. Britain would have to leave the EU to be sure of avoiding it.
In the short term, there has been a compromise proposal from Britain which would introduce the concept of 'mutual recognition' of every EU country's legal decisions by criminal courts. This proposal would remove our Habeas Corpus safeguards and we would accept that a judge in another EU country could order the arrest of a UK citizen on UK soil under their laws, without having to produce any evidence (in fact this situation already exists in the case of extradition within the EU) or any formality whatsoever (Although at present it is still possible to produce arguments to resist extradition requests. This last possibility will be eliminated).
As with so much legislation from the EU, CJ is following a well worn path: a secretive start to the proposal, then disclosure by a whistle blower, then government and often EU denials (‘it is only a discussion paper’; ‘nothing to worry about’; ‘we can stop it anyway’), followed by its introduction into legislation by stealth; and then, when the full horror is revealed, a shrug of the shoulders (‘well, it is too late now to do anything, you should have protested about it at the time’).
Initially it may well look innocuous, indeed even desirable. After all, who is going to stand up and say that fraud with the European Commission itself should not be tackled? Once the principle has been accepted then it will be much easier for them to apply it as an overall EU Code of Criminal Law. If CJ is imposed and Britain refuses to accept then the issue will go before the European Court of Justice which surely will uphold the majority decision to introduce it under Article 280 of the Amsterdam Treaty. (The intention to use this device is confirmed in pp 84-85 of the House of Lords Report, HL 62, HMSP 1999)
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