Opinion: why we need a European Public Prosecutor

There are serious cross-border criminals at large in Europe damaging the lives of innocent people. A certain numbers of them are more likely to be dealt with when a European Public Prosecutor is created. The British Government needs to escape the defensive dug-out epitomised by Blair’s “red lines” and fight for the good that co-operation in Europe can bring for all our people. This is a time for leadership.

A federal public prosecutor is provided for in the Treaty of Lisbon with a distinct emphasis on financial crime. I use the f-word, federal, because while it has been excluded from European documents at the insistence of Tory and Labour governments, there really is nothing to fear in a word the dictionary defines as “pertaining to a union between states… with individual state governments”.

It is obvious to most people that the integration of 27 member states’ economies involving free movement of goods, services, information, ideas, skills, people, and capital has and will unfortunately result in a freer movement of crime and criminals. That is not to say that the single market is a bad thing. It has created greater peace and prosperity. But wherever economic activity takes places there is always a risk of crime. A small number of people will seek to enrich themselves by cheating, stealing or smuggling at the expense of the law-abiding majority.

Co-operation to beat crime is growing. As of this year, our police and courts can now obtain the history of anyone’s previous convictions in any European state and our judges and magistrates take them into account as they would convictions in this country. There are new systems of mutual assistance that enable our police to more easily reach witnesses and evidence located in another part of Europe. The European Arrest Warrant has enabled a return to this country of hundreds of fugitives from justice. A charter of basic rights for defendants has been proposed to protect every European wherever they might be arrested. This should reassure those concerned for Britons arrested in other European states but was, disappointingly, resisted by the Labour government

Lisbon limits the Prosecutor’s role to cases involving the EU’s financial interests. Generally, this will mean prosecuting any fraud on the EU budget such as bogus claims on the CAP, misappropriation by any official with access to EU funds or bribery of an EU official. At some future point, the Council can expand the Prosecutor’s jurisdiction to certain types of cross-border crime. The tabloid fear that the Prosecutor will ride spectre-like across Europe arresting all manner of Europeans for any kind of offence is wrong. Lisbon strictly limits the Prosecutor’s powers. The Prosecutor’s existence will not affect the jurisdiction of other prosecutors like the CPS in England & Wales or the Procurator-Fiscal in Scotland.

The advantage of having a European Prosecutor is better and more systematic protection of the EU budget from fraud than is afforded by member state public prosecutors who have, very understandably, more local priorities. At present it is entirely possible that a member state’s prosecutor may decide that their own state’s interest is against prosecuting, for example, a large company in their state that has been making fraudulent claims for EU funds. A European Prosecutor can ensure the wider interests of the people of the Union are upheld by the crime being prosecuted in the national courts. The EU budget is about 160 billion euros (or 320 euros per person). That is extremely small compared to any of the member states own budgets but the public deserve protection from fraudsters.

When the Council expands, as Lisbon permits, the Prosecutor’s role to cross-border crime that will be a really exciting development. At present, criminals operate freely across borders against member state prosecutors whose powers to act do not cross the same borders. A European Prosecutor will even the odds against the drug smugglers, people traffickers and large-scale fraudsters who damage our economy and destroy lives.

Will the Prosecutor be worth the money? That can be measured by whether the fraud the Prosecutor detects and prosecutes (often leading to the recovery of assets) and other fraud disrupted or deterred is greater than the cost of the Prosecutor’s work. Although, I strongly believe that upholding the rule of law is a value that cannot be reduced to a book-keeping exercise. It is an essential part of civilised society. The richest society is deficient if it does not uphold the law.

The European Public Prosecutor will not bring charges against citizens in a federal European court. Lisbon guarantees that the prosecutor will bring charges in the national courts. So, if the Prosecutor charges someone in England she will still have to convince am English jury to their guilt, with the same burden of proof and rules of evidence as a Crown Prosecutor or a prosecutor from any of the multitude of organisations that regularly prosecute in our criminal courts. Indeed, tabloids who sometimes criticise the CPS for the cases it brings (or doesn’t bring) to court have expressed horror that the European Prosecutor will be able to bring cases without approval of the CPS. But anyone already can bring a prosecution without CPS approval. As well as prosecutions by private citizens, Whitehall departments like the DWP prosecute as do local councils, bodies like the DVLA and Environment Agency and charities like the RSPCA.

The Prosecutor will be created when 9 of the 27 states of the Union agree to proceed. If Britain sits out the early days of a new institution the danger is that (once again) precedents will be made, a blank canvass filled, differently than if we were involved. Our coalition government should not miss a great opportunity to lead Europe on the creation of the Prosecutor and further the fight against serious crime.

Antony Hook stood for South East England in the 2009 European elections.

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This entry was posted in Europe / International and Op-eds.
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4 Comments

  • “free movement of… people”? Have you tried getting in and out of Britain recently? How about achieving freedom of movement instead of worrying about public prosecutors?

  • When we have situations caused by the European arrest warrant allowing the extradition of the fan back to prison in Portugal for a matter he’d already been told he was free on, or the pair extradited back to Hungary to languish in jail there while evidence was accumulated against them, with British courts unable to intervene, even though in both cases there would not have been sufficient to detain them had the offences occurred under British juridiction, then I have little confidence in European justice. While I have no objection to this post in principle, sorting out the injustices caused by the current legislation should come first.

  • Julia Bateman 24th Oct '10 - 5:38pm

    Members of the legal profession, both prosecution and defence, have not supported this move to date. Do you have a strong view from practitioners that this would actually lead to more effective prosecution? I would also be interested to know whether you think that prosecutorial discretion, a key facet of a common law approach, should be overidden by a European Public Prosecutor? What about the rules of evidence and the specific safeguards that would apply?

    I too support EU moves to make sure law enforcement, investigative authorities and police forces work better – backed up by a robust and effective procedural rights framework. However the European Public Prosecutor is not the way to go.

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