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Who’s Afraid of the Big, Bad European Public Prosecutor?

  • John R. Spencer

Abstract

In 1997 the idea of a European Public Prosecutor was floated in the Corpus Juris Project as one of a series of measures designed to ensure that fraud on the Community budget would be detected and punished. This chapter describes how in the UK the proposal was misrepresented by the eurosceptic press, and how Parliament reacted to the distorted version by changing the law to render any future participation by the UK in a project to create a European Public Prosecutor practically impossible.

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1 European Union Act, 2011, c11, s 6—and in particular, s 6(5)(c).

2 For a fuller account, see Spencer, J RThe Corpus Juris Project and the Fight against Budgetary Fraud’ (1998) 1 Cambridge Yearbook of European Legal Studies ch 5 .

3 Just over 1% of the total gross national income of all the Member States.

4 See The EU Budget 2012 in Figures: Financial Programming and Budget, online at www.ec.europa.eu/budget/figures/2012/2012_en.cfm

5 The expression is sometimes used to describe a trans-border ‘missing trader fraud’ of the sort described above.

6 BBC News, ‘Fraudster’s “pop star” lifestyle’ (4 October 2008).

8 See the House of Lords House of Lords, Select Committee on the European Communities, Prosecuting Fraud on the Communities’ Finances (n 19) §9.

9 Bart Staes and Antoine Beudts, BTW Carrousel Fraude; an executive summary in English is available at www.greens-efa.eu/fileadmin/dam/Documents/Publications/summary_VAT_carousel_fraud_201107_en.pdf

10 BBC News, ‘Fraudster’s “Pop Star” Lifestyle’ (n 6).

11 Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) [1999] OJ L136.

12 Because, as every British lawyer knows, in the United Kingdom there are no less than three: those of England and Wales, Scotland and Northern Ireland.

13 For further details, see Spencer, , ‘The Corpus Juris Project’ (n 2) 83 . The UK association is currently called ECLA (UK)—which stands for the European Criminal Lawyers Association (UK). For further details see its website: www.eucriminallaw.com.

14 The members were Professors Enrique Bacigalupo (Spain), Giovanni Grasso (Italy), Klaus Tiedemann (Germany), Nils Jareborg (Sweden), Dionysios Spinellis (Greece), Christine Van den Wyngaert (Belgium), Mireille Delmas-Marty (France), and JR Spencer (England).

15 The document was originally drafted in French, in which the title was CORPUS JURIS: portant dispositions pénales pour la protection des intérêts financiers de l’Union européenne; sous la direction de Mireille Delmas-Marty. Available in hard copy only, it was published by Editions Economica, 49 rue Héricart, 75015 Paris. The articles of the code that it contained are reproduced as an annexe to Spencer, ‘The Corpus Juris Project’ (n 2).

16 Fraud Trials Committee Report: Chairman The Right Honourable the Lord Roskill, PC (London, HMSO, 1986). As readers familiar with English criminal procedure will be aware, the call for fraud trials to be conducted without juries was repeated by SirAuld, Robin in his Review of the Criminal Courts (London, The Stationery Office, 2001) and provision for this was enacted in s 43 of the Criminal Justice Act 2003. However, this section has never been brought into force and the Protection of Freedoms Act 2012 has now repealed it.

17 Delmas-Marty, M and Vervaele, JAE (eds), The Implementation of the Corpus Juris in the Member States (Antwerp, Intersentia). Unlike the original document, which was a single volume of 179 pages, this study consists of four substantial volumes.

18 Avis de la Commission du 26 janvier 2000, Com (2000) 34.

19 House of Lords, Select Committee on the European Communities, Session 1998–99, 9th Report, Prosecuting Fraud on the Communities’ Finances: The Corpus Juris, HL Paper 62; available from the Stationery Office, and on the internet via the UK Parliament home page at www.parliament.uk.

20 Kate Hoey, MP, Junior Minister at the Home Office.

21 See the evidence of a junior minister, Kate Hoey, to the House of Lords Select Committee on the European Communities, Prosecuting Fraud (n 19) App 4, §297:

The simplest way of putting it is that we support cooperation between jurisdictions rather than creating a single jurisdiction. Particularly as I come from Northern Ireland and Lord Hope is from Scotland, a very good model for this cooperation is what we already have here, working between the separate jurisdictions within the United Kingdom.

22 Programme of measures to implement the principle of mutual recognition of decisions in criminal matters, 2001/C 12/02, OJ 15 Jnauary 2001.

23 Council Framework Decision of 13 June 2002 on the European Arrest Warrant and Surrender Procedures between Member States, 2002/584/JHA, [2002] OJ L190/1.

24 Council Framework Decision 2003/577 JHA of 22 July 2003 on the execution in the European Union or orders freezing property or evidence [2003] OJ L196/45; Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties [2005] OJ L76/16; Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders [2006] OJ L328/59; Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters [2008] OJ L350/72; Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters involving deprivation of liberty (etc) [2008] OJ L327/27; Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions (etc) [2008] OJ L337/102; Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings [2008] OJ L220/32; Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention, OJ L294/20.

25 A proposal for European Investigation Order, requiring the courts of Member States to give effect to requests from other Member States for the collection of evidence.

26 Art III-175.

27 Further details of the project can be found online at the project website, www.eppo-project.eu/index.php/

29 Evidence recently heard by the Leveson Inquiry into the Culture, Practice and Ethics of the Press makes it clear that Rupert Murdoch, if no other, exerts his influence as owner to ensure that the newspapers in his group publish views that are in tune with his. When giving evidence to the Inquiry Sir Harold Evans, who was editor of The Times when News International acquired it, described ‘a year of constant editorial interference from Murdoch’ before he was eventually forced out of office: The Guardian (17 May 2012); and in his own evidence, Murdoch told the enquiry that if any politician ‘wanted my opinion he only had to read the editorials in the Sun’; see (inter alia) the Guardian News Blog (25 April 2012). On the influence of the British press on the growth of euroscepticism in the UK, see Gifford, Chris, The Making of Eurosceptic Britain; Identity and Economy in a Post-imperialist State (London, Ashgate, 2008) 126 .

30 An article in the Daily Express (9 September 2007) described him as ‘a British constitutional lawyer who lives in Italy’. This led to online correspondence about his credentials, in which Mr Dick-Erikson denied that he had ever claimed to be a lawyer and the journalist who had written the piece accepted responsibility for misdescribing him.

31 By the nineteenth century, corrupt abridgements rather than the original; see Thomas S Freeman, in the Oxford Dictionary of National Biography:

later editors did not even bother to reprint the entire work, but preferred to cut away the sections that did not suit their purpose, retaining only sensational episodes of torture and death, which, when taken together with equally sensational illustrations, gave Foxe’s work a lurid quality which was actually far from the author’s intentions.

32 I have my family’s copy. According to my grandmother it was, with the Bible, one of the two books which, she was allowed to read on Sundays when she was a little girl.

33 Torquil Dick-Erikson, writing in The Independent (21 September 1990):

The inquisitorial method was initiated by the Church of Rome in the Middle Ages. Its purpose as the ‘holy inquisition’ was to stamp out heresy, witchcraft and deviant thoughts … It was adopted as a system of justice by secular governments throughout continental Europe as a tool for imposing the ruler’s will … Only Britain failed to adopt this method. Here, under Magna Carta, the law was, and is, conceived as an instrument that also protects subjects against the overweening powers of central authority … Napoleon standardised the inquisitorial method in his code of criminal procedure. His armies imposed it throughout continental Europe. His imperial rule may have been swept away at Trafalgar and Waterloo, but his code remains in force today.

34 From the anonymous entry on John Foxe in Wikipedia.

35 Daily Mail (16 May 2006).

36 Sunday Telegraph (26 March 2000).

37 A story from 1992, cited in the list of the ‘Euromyths’ on the European Commission’s website (n 54). Sadly, this does not reveal the newspaper in which the story appeared.

38 Daily Express (8 July 2010).

39 Daily Telegraph (17 October 2002).

40 The Sun (2 August 2005).

41 Daily Mail (30 April 2002).

42 Daily Telegraph (9 April 1998).

43 Daily Telegraph (14 October 2004).

44 The Sun (7 March 2005).

45 Daily Mail (7 April 2002).

46 The European Journal (April and June 1997.

47 Daily Mail (29 August 1997).

48 Daily Telegraph (30 November 1998).

49 BBC News (27 April 1999).

50 House of Lords, Select Committee on the European Communities, Prosecuting Fraud (n 19) §113.

55 For an interesting but deeply depressing overview of the impact of the media on public opinion in these three areas, see the first two chapters Darbyshire, Penny, Sitting in Judgment: The Working Lives of Judges (Oxford, Hart Publishing, 2011).

56 As widely reported in a range of national newspapers on 12 January 2012.

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