McDowell is not doing justice to EU plans


The Minister for Justice has been content to shout from the sidelines about the EU and criminal law, writes Eugene Regan

The recent statements by the Minister for Justice, Equality and Law Reform, Mr McDowell, denouncing the European Union's involvement in criminal law matters is at variance with the commitments already entered into by the Irish Government, with the need for action at European level to combat serious crime within an enlarged Europe without borders and with day-to-day Government decisions in criminal law matters.

These pronouncements are also irrelevant to the current debate within the Convention on the Future of Europe because the Minister has chosen not to make any formal written submissions to the convention's working group on justice and home affairs. While there has been shouting from the sidelines by the Minister, there has been no meaningful positive engagement in the convention negotiations on these issues. This group, under the chairmanship of John Bruton TD, has already issued its final report to the convention.

Mr McDowell has raised the spectre of the harmonisation of EU criminal law within the European Union, yet neither in the Amsterdam Treaty, the Tampere European Council of October 1999 nor the recently adopted paper of the convention working group does anyone call for the harmonisation of European criminal law.

The Minister overlooks the fact that respect for the prerogatives of member-states in regard to policing and criminal law is underlined by the principle of mutual recognition which was accepted by all member-states in the Amsterdam Treaty. Mutual recognition, based on mutual respect for each other's legal systems, rather than harmonisation, is the procedure being followed. In place of harmonisation, each member-state will, under certain conditions, give recognition to the orders and judgments of the courts of other member states in the criminal law field. This is similar to the mutual recognition of judgments in civil and commercial matters which has existed for some time between member-states and is shortly to apply to the European arrest warrant.

Mutual recognition does not provide for interference in the investigation, prosecution, trial, conviction and punishment of citizens, as suggested by Mr McDowell. These responsibilities remain firmly rooted in the member-state. In a single economic area without borders, problems arise for national police and judicial authorities in prosecuting crimes where elements of the crime are committed in different member-states but where no national authority has the capacity to effectively investigate or prosecute the alleged crimes. It is for this reason that bodies such as Europol and Eurojust have been created to co-ordinate and enhance the ability of member-states to investigate and prosecute cross-border crimes and that the notion of a European public prosecutor has been mooted.

Tony Blair, the British Prime Minister, speaking on the Convention on the Future of Europe in a speech on November 28th this year, acknowledged the importance of the Union role in this area and has called for justice and home affairs matters to be brought within the competence of the EU. He said this "will mean integrated and effective action on issues to do with organised crime, drug-dealing, asylum and immigration that affect all of Europe, cause huge distress and difficulty and cannot seriously be tackled by nations alone".

In contrast, Mr McDowell has adopted an "out, out out" approach when he objects repeatedly to an EU input into Irish criminal law on the spurious grounds that it would interfere unduly with our own criminal legal system. Indeed the position promulgated by the Minister is contradicted by the recent adoption of amendments to the Offences Against the State Acts to deal with the threat of international terrorism, measures which were drawn up at EU level as a co-ordinated response to the September 11th attacks.

For this country to give recognition to foreign orders and judgments and to extradite people on the basis of a European arrest warrant issued by another member-state, it is essential that appropriate safeguards for the protection of individual rights are established and that the core elements of our criminal law system, such as the presumption of innocence, the rule against hearsay evidence, and habeas corpus and bail are not compromised. If there are concerns in these areas, the working group on justice and home affairs within the Convention on the Future of Europe was the place to highlight them. Unfortunately no written submissions were made to this group by the Minister on these matters.

Rather than engaging with our partners in Europe we now purport to hold up developments by insisting on a unanimity voting requirement in justice and home affairs matters, which in an EU of 27 is a recipe for inactivity, stalemate and frustration of attempts by member-states to co-operate effectively in this area.

The proposals in the convention report on justice and criminal law are firmly anchored on the principle of mutual recognition rather than harmonisation of criminal law. The proposals are the minimum necessary to ensure that member-states can work together more effectively in policing and prosecuting crime within the EU.

The most welcome proposal is that all decisions taken at European level in the area of policing and judicial cooperation in criminal matters will in future be taken on the initiative of the European Commission, or a minimum number of member-states, and will be the subject of democratic control by the European Parliament (and possibly of national parliaments), and judicial control by the European Court. Thus the democratic accountability, transparency and judicial control which have been absent up to now will in future apply to policing and criminal law matters.

Eugene Regan is a barrister and editor of The New Third Pillar: Co-operation against Crime in the European Union