1. European Criminal Law: What’s New for 2016? Professor John Spencer President February 2016, 4.30-6.00

2. Hands up those who thought I’d win

3. Two pre-election promises: Repeal the Human Rights Act, to restore independence of Parliament and UK judges “renegotiate” UK’s relationship with the EU, and then hold a referendum

8. Apparently, the PM’s list of “renegotiation” demands doesn’t include any relating to EU criminal law. So what has been happening in this area generally? First, a reminder of what “EU criminal law” consists of …

9. EU criminal law : New agencies Police co-operation measures Mutual recognition Harmonising criminal law Harmonising criminal procedure

10. After Lisbon: the new deal 82 TFEU “approximation” of criminal procedure, so far as “necessary to facilitate mutual recognition” 83 TFEU “approximation” of substantive criminal law on a range of specified topics, to which the Council can add, by unanimous decision. QMV – farewell to the veto ECJ/ CJEU has power to interpret and enforce

11. Lisbon Treaty: UK opt-outs Protocol 21: “No new EU justice measures apply to us unless we decide to opt into them” Protocol 36, article 10, clause 4: “We can pull out of all the remaining Maastricht measures ahead of the CJEU getting power to make us implement them”

12. The Protocol 36 saga, 2012-2014 Final outcome: in July 2013 the UK exercises the opt-out, and (after many arguments, and amendments to Part I of the Extradition Act 2003) then opts back into all the significant measures in December 2014.

14. The “Magic 35”; the list includes: Agencies: Europol, Eurojust, EJN, SIS Police co-operation: Naples II, “Swedish FWD”, JITs, ECRIS, Schengen Mutual recognition: **EAW**, supervision order (alias“Eurobail”), fines, jail, confiscation orders;[but not probation] Harmonising criminal law: child porn (only); all the rest are dropped – including e.g. the FWD on terrorism (!) Harmonising criminal procedure: Schengen art. 54; equal weight to convictions imposed in other EU Member States

16. … and now back in again to one: Prüm Decision 2008/615/JHA Decision 2008/616/JHA Framework Decision 2009/905/JHA

18. For new measures: Protocol 21 (reminder) Protocol 21 – out of all new JHA measures, unless we opt in, within three months of the balloon going up (Though we can hold back, and then do it later)

19. New measures Those ongoing at the 2015 election - EPPO and related measures - the “Roadmap” Those floated since the 2015 election - extending ECRIS - a new EU Terrorism Directive

21. The problem with OLAF…

22. A European Public Prosecutor: What structure is proposed? 1. Corpus Juris model – A single code of fraud offences – An EPP [in e.g. Brussels], with E(Del)Ps in Member States – Investigating with a single set of investigative powers – Some common rules of evidence – Trial before the courts of Member States (no “Federal Court”, as in the USA)

23. 2. The Commission’s July 2013 model - no uniform code of fraud offences - an EPP with Deputies [in e.g. Brussels] with E(Del)Ps in Member States - investigating in Member States using national powers - trial before the courts of Member States (as in the Corpus Juris model)

24. 3. The Council model as of December 2015 - no uniform code of fraud offences - an EPP with Deputies [in e.g. Brussels] with E(Del)Ps in Member States - but directed by a “College”, which makes policy, and operating in “Chambers”, which will run individual cases

25. The EPPO … “European Prosecution Paralysis Organisation??”

26. Unfinished business … EPPO’s competence – the proposed “PIF Directive” (still under negotiation) Relationship with OLAF and with Eurojust Relationship with non-participating Member States

27. The “referendum lock”

28. Harmonising criminal procedure Defence Rights: the “Roadmap” Measure A: Translation and Interpretation Measure B: Information on Rights and Information about the Charges Measure C: Legal Advice and Legal Aid Measure D: Communication with Relatives, Employers and Consular Officials Measure E: Special Safeguards for Suspected or Accused Persons who are Vulnerable Measure F: A Green Paper on Pre-Trial Detention

29. What the UK has done about the Roadmap… Translation and interpretation: we’re in! Information: we’re in (just!) Legal advice and communication: Joined in discussions, got our way, but then refused to join …” Green Paper on Pre-trial Detention? Governmental response: “not a case for EU legislation” Proposals for Directives on Juvenile Suspects, Legal Aid and the Presumption of Innocence Refusal to opt in; though we might eventually join the one on juvenile suspects

30. New proposals: A bigger and better ECRIS A new Terrorism Directive

31. What is ECRIS – and why a new one? Council Decision 2009/316/JHA of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315/JHA

32. A new Terrorism Directive? Proposal from the Commission on 2 December 2015 Attitude of UK government???

33. UK policy: conclusion Under Labour, the UK’s policy was consistent: “together for repression” Under the Coalition the UK’s policy was incoherent; much public complaining about the quality of justice in other Member States, but blowing hot and cold on EU attempts at raising standards. Under the Tories ???

34. And (almost) finally … what’s happening with the EAW? EAW rights project launched CJEU decisions – including the Lanigan case, C- 237/1SPPU In Germany, Bundesverfassungs gericht flexes its muscles On December 23 2015, HH Judge Edmonds QC makes the first ESO in the UK

35. And finally … the referendum What will happen to EU criminal law in case of BREXIT? Come to the ECLA UK seminar on this on 9 May