CPS marginalised if EU 'Super Prosecutor' plans go ahead

07 Mar 10

The Spanish Presidency of the EU Council of Ministers has already unveiled plans to create a European Public Prosecutor using powers enshrined by the Lisbon Treaty, but this could weaken the CPS’ position. Brian Sims reports.

By Brian Sims

The idea, which may become reality next month, is supported by delegations from France and Germany, but sets a dangerous precedent in that the proposed ‘Super Prosecutor’ would be granted powers to bring cases against British citizens without the prior approval of the Crown Prosecution Service (CPS) or the UK Government.

In short, British citizens could well be facing up to prosecutions meted out by a justice system wherein the British Government has had no say in its establishment.

The Spanish Public Prosecutor, Cándido Conde-Pumpido, together with Juan Fernando López Aguilar (the chairman of the Committee on Justice and Home Affairs of the European Parliament) and Diego López Garrido (Spanish Secretary of State for the EU) submitted a first draft proposal to Brussels that the EU 27 will discuss in April.

Not surprisingly, many influential commentators are regarding this as an “extremely worrying” development. It’s also seen as a demonstration of Brussels’ ongoing (and, apparently, successful) attempts to wrest as much political and economic power away from the UK as possible.

Enhanced co-operation process

To their credit, Gordon Brown and his Cabinet have opposed the plans but, in the real world, there’s very little they can do to block the move if the instigator enjoys the backing of nine or more EU Member States under what is known as the ‘enhanced co-operation process’.

In effect, the Spanish-orchestrated proposals - Spain having taken over the rotating Presidency of the EU Council of Ministers in January - mean that, while the ‘Super Prosecutor’ will not be able to instigate cases on home shores, they’ll still be able to issue European arrest warrants that force UK citizens to face prosecution in another Member State.

In doing so, there will be no need for the ‘Super Prosecutor’ to ask permission from either our Government or Keir Starmer, currently the director of public prosecutions.

"The development represents the first step on a long journey that the Spanish Presidency is anxious to begin as soon as possible," said Conde Pumpido as he presented the technical details on the possibility of setting up a Public Prosecutor's Office.

Investigation of fraudulent acts

Initially, powers belonging to the ‘Super Prosecutor’ would be confined to cross-border financial transactions and, more specifically, to the investigation of fraudulent acts and “speculation against the euro”.

That said, there are suggestions that the ‘Super Prosecutor’ could look to extend its powers as a means to prosecute a range of crimes, be they financial or of some other persuasion.

On that note, according to The Daily Telegraph’s website, the Spanish Presidency’s own Internet offering raises the prospect of allowing the 'Super Prosecutor' to also “investigate and initiate criminal proceedings against cross-border crimes such as people trafficking, drug trafficking or terrorism”.

For many, this announcement is proof-positive that Gordon Brown’s negotiated ‘opt-outs’ from the Lisbon Treaty when it comes to issues of justice and/or home affairs are nothing if not an inadequate safeguard in relation to the UK’s criminal and judicial system.

Integrity and accountability in danger

Speaking in The Daily Telegraph, shadow Europe minister Mark Francois is quoted as stating: “The Lisbon Treaty allows other countries to establish a European Prosecutor for themselves if they so wish, but we’re not obliged to follow suit. In fact, it would be absolutely unacceptable for Britain to participate in any such project.”

Francois continues: “It would endanger the integrity and accountability of our legal system. A Conservative Government would not allow a European Public Prosecutor to have any authority in Britain. Labour and the Liberal Democrats should now match our position.”

Via LinkedIn, SMT Online’s Editor Brian Sims canvassed the opinions of several industry experts, including Andy Williams (the regional director of loss prevention at the Marriott International Hotels Group), KPMG Forensic employee fraud expert David Chernick and security and risk management practitioner Ashley Wilce.

“Would Regina versus John Bull be replaced by Faceless Bureaucrat versus John Smith?” said Williams. “Will we now be within the jurisdiction of Brussels?”

He added: “Could it turn out to be like those counter-terrorism snooping laws that councils are now using to spy on our recycling bins? Will Europol suddenly become Big Brother? Perhaps this is the start of Europa Big Brother?”

Williams concluded that: “If this initiative were proposing the formation of an integrated EU Criminal Records Bureau then that could be useful.”

Governments and commerce should work together

David Chernick commented: “A Spanish finance minister might well desire to use the Lisbon Treaty to issue European arrest warrants, but that doesn’t mean the UK has to oblige. However, criminals – including the fraudsters – don’t tend to take any notice of international boundaries. That being the case, Governments and commerce ought to work together on a far more regular and concerted basis.”

For his part, Ashley Wilce added: “It’s shocking that we’re talking about Britons being forcibly taken to other countries for trial when some of those nations have inferior criminal justice systems and poor records on Human Rights. However, this process has already been going on for some time as a result of the actions of the current Government.”

James Willison - convergence lead at ASIS International - explained: "My concern would be that the Government assists the EU where it can at all times for the sake of justice and integrity irrespective of political opinion. I'm not convinced that all those who speak on this issue follow these principles. Hence the UK Government should give help to all fraud investigations and not protect the perpetrators."

He continued: "A call for some degree of transparency across the EU would help."

Willison concluded: "The need for cross-national participation in investigation has been stated for many years, and it remains too easy for some to avoid prosecution. This is a solution to ensuring that more people are convicted of criminality."

The ASIS member suggests that it'll likely be white collar crime which will be more successfully targeted through such a 'Super Prosecutor'. "However, I stress I'm not an expert on this matter. I'm simply offering another opinion. I can of course see why people would express real concerns for their freedoms, particularly if wrongfully arrested. No doubt this development will be debated in Parliament at some length."

Torn between two precepts

Michael Egdell, EMEA security manager at Thomson Reuters, also joined the debate. Egdell said: "I'm torn between the two precepts of justice being done (and being seen to be done) to criminals and the rule of Law in the UK."

Egdell recently commenced study for a law degree at the Open University, which rendes this subject of particular interest to him at the present time.

"The concept of rules and laws being created by society to preserve order within a given community relies on the understanding that rules and laws will be created by those societies/communities to whom they will apply," he explained. "I can understand the idea of local legislators agreeing to uphold laws from an 'Outside Agency' by consent, but not for an outside agency to impose those laws on a democratically elected legislature which effectively has no say in how those laws will be applied."

In conclusion, Egdell told SMT Online: "From my perspective, I would not wish to have the will of others 'imposed' on a sovereign nation (the UK). To me, this looks like yet another attempt at creating a European Federal Government. That's something which doesn't particularly agree with me. Ultimately, criminals should not be allowed to succeed."