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Guest Contribution: Murphy on Criminal Justice Co-Operation in the EU

We are delighted to welcome this second guest contribution from Dr Cian Murphy of City University, London. You can find out more about Cian on the Guest Contribution page.

Criminal Justice Co-operation in the EU: Lisbon, Stockholm and Ireland

The past two months have seen the coming into force of the Lisbon Treaty and agreement on the Stockholm Programme which sets out (amongst other matters) the EU’s priorities in the area of criminal justice co-operation for the coming years. The Programme is the latest in the area of freedom, security and justice and succeeds the Tampere Programme and the Hague Programme. It claims its focus is ‘on the interests and needs of citizens. The challenge will be to ensure respect for fundamental freedoms and integrity while guaranteeing security in Europe’ (p3 Stockholm Programme ‘SP’). The Stockholm Programme will be pursued on the basis of the new constitutional arrangements brought into place by the Lisbon Treaty. In particular, the Programme will benefit from the effective merging of the first and third pillars and the shift towards the ordinary legislative procedure in relation to most areas of Justice and Home Affairs. As such, EU law in this area will be adopted based on co-decision between the Parliament and the Council with the latter operating through qualified majority voting. These new developments are likely to lead to an increase in legislation in these areas as the Council and Commission vigorously pursue the Programme.

The Stockholm Programme sets out an ambitious set of proposals in relation to criminal law and criminal justice. While the legislative priorities to be pursued under the Programme will be made clearer by an Action Plan to be drawn up by the Commission before the end of June, the Programme itself makes clear that the volume of EU criminal law is set to increase in the coming years. Substantive criminal law is called for under two of the Programme’s streams: ‘A Europe of Law and Justice’ (p28 SP) and ‘A Europe that Protects’ (p44 SP). In later 2010 and early 2011 we can expect legislation to combat trafficking in human beings, sexual exploitation (in particular in relation to children) and cyber crime. A legal basis for such legislation can be found in Article 83(1) TFEU. Indeed, the Stockholm Programme notes that the ten areas of criminal law mentioned in Article 83(1) TFEU may become ‘the object of common incriminations and common minimum levels of maximum sanctions’ (p28 SP).

The Programme also provides for a range of new developments in relation to procedural co-operation. Thus, the European Evidence Warrant is to be revised and a new measure adopted to replace the existing regulatory framework in this area. The Programme calls for the implementation of the European Criminal Record Information System and the consideration of legislation for an EU Passenger Name Record system. There are but two of the data surveillance and exchange measures to be adopted under the Programme. One of the most worrying aspects of the Programme is the call for the Member States and the Commission ‘to actively promote and support crime prevention measures focusing on prevention of mass criminality and cross-border crime affecting the daily life of our citizens in accordance with Article 84 TFEU’ (p42 SP emphasis added). The provision of the Treaty referred to allows for the adoption of legislation in relation to crime prevention as long as it does not harmonise national law. It is not clear how Article 84 TFEU may be used, but the vague and potentially broad use of the provision to prevent amorphous ‘mass criminality’ is cause for concern.

The Stockholm Programme makes reference to the Roadmap for strengthening procedural rights of suspected and accused persons in criminal proceedings drawn up by the Swedish Presidency of the EU (p17 SP). The Roadmap calls for a step-by-step approach to EU legislation in this area, covering translation and interpretation rights, information on rights and charges, legal aid and legal advice, communication, special safeguards for vulnerable individuals and a green paper on detention. Though it may provide a strong set of rights for suspects if adopted, it is difficult not to view the Roadmap as demonstrating the EU’s abject failure in this area. The Hague Programme had claimed that a ‘Framework Decision on certain procedural rights in criminal proceedings throughout the European Union should be adopted by the end of 2005’. The Commission’s Evaluation of that Programme, published in mid-2009 noted that the Framework Decision had not been adopted ‘despite the importance attached to it by practitioners throughout Europe’. As the Stockholm Programme clearly aims to improve the trust necessary to firmly secure EU criminal justice, the success of the Roadmap will be a litmus test for the success of the Programme more generally.

Turning to Irish involvement in these matters, the Lisbon Treaty has altered Ireland’s relationship with Justice and Home Affairs. First, Ireland will no longer automatically be involved in EU JHA law. Rather, the Government will have to decide whether or not to opt into each measure on a case-by-case basis. Second, Ireland’s opt-out may be ended by the Government without the need for a further referendum, subject to the approval of the Oireachtas. Whether the Government chooses to opt in or out on particular measures, or to end the general opt-out, the combined effects of Lisbon and Stockholm will see the Ireland consider more and more EU Justice and Home Affairs law in the years to come.

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