Criminal law opt-out – our justice system deserves better

Paul Grover/Rex Features
By Elaine Freer,

Recently there has been concern in the legal world and media about the potential loss of EU criminal justice and judicial cooperation measures which are incorporated into English law.

This has arisen because David Cameron has indicated his intention to exercise the opt-out contained in Protocol 36 of the Treaty of Lisbon. This opt-out was negotiated byEnglandin the run-up to the Treaty of Lisbon due a fear of being bound completely, and without escape, to EU criminal justice and judicial cooperation measures which had been enacted prior to the Treaty of Lisbon.

The opt-out has to be exercised by June 2014, and consequently it is only now that attention is truly being paid to it. Although this post discusses the problems of opting out, it should be noted that there are possibilities regarding opting back in to certain proposals which are not covered here.

EU criminal justice measures are crucial both for victims and for defendants. These measures ensure that victims of crimes in other counties, or of crimes committed in their country but by a national of another EU state, have access to the relevant criminal justice system.

For defendants, it gives them safeguards of various fair trial rights. If England exercises its opt-out, we will have no right to complain if we struggle to gain co-operation from other countries when we want to obtain access to a fugitive, or ensure that a British victim is given the help that they require.

Two recent cases that have captured the media attention in England have demonstrated the paramount importance of these provisions. The first is the murder of a British man, his wife and mother-in-law, and an unrelated French cyclist, in a remote part of the French countryside whilst they were on holiday. The man’s two young daughters survived, although one remains seriously injured, and the outlook for her future is unsure. The investigation needed co-operation between the French and English authorities. Such co-operation must have a legal basis, as required by both data protection laws in England, and more specifically Art 8, ch II of the Charter of Fundamental Rights of the European Union under EU law. Therefore, without provisions enshrined in EU criminal justice and judicial cooperation policy it would be infinitely more difficult for information pertinent to the investigation to be shared, however crucial it may be.

A Joint Investigation Team (permitted under the 2002 Council Framework Decision 2002/465/JHA of 13 June 2002 on joint investigation teams) has been set up by the French and English authorities; the investigating magistrate and the police force of the family’s home in England are now working together in an attempt to discover any motive for the murder of the family.

Those involved have been the first to admit that differences between the two legal systems have meant that some adjusting is needed by members of the team; for example, the role of the police in gathering evidence during an investigation in preparation for a prosecution, compared to that role being carried out by a magistrate in France, is a significant difference between the two countries. However, these difficulties aside, without the EU laws that the opt-out would see England excluded from, the French authorities would be severely restricted in the lines of enquiry which they could follow, and the ways in which they could seek evidence in England. This was undoubtedly a gruesome murder, and a particular tragedy for the two young girls left orphaned. If a similar case were to occur after England had exercised the opt-out under Protocol 36, it is highly likely that it could not be solved for want of legal methods of information sharing. In a society that encourages immigration, it is not surprising that international crime is also on the rise, and investigations relying on cross-border co-operation will only increase.

A second recent event which has drawn attention to the necessity of EU law in this area is the case of a 15-year-old schoolgirl who ran away with her Maths teacher (Jeremy Forrest). They were discovered in France, where the age of consent is 15, and so no offence had been committed.

A European Arrest Warrant (2002 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States), an entity subject to much criticism over the years of its existence (see New Journal of European Criminal Law (2011) 2(2) 124-132 and 133-147 for two different viewpoints), was issued for the teacher.

As there is no requirement of dual criminality (the action in question being an offence both in the state that issues the warrant and in the state to which the warrant has been issued, ie the state where the person is, or is believed to be) if the offence is one of those appearing on the “Framework Decision List”, the teacher could be detained even if he had not committed an offence in France, and it has recently been announced that he will not be contesting his extradition back to England.

Had the European Arrest Warrant been “opted-out” of by the UK by the exercise of Protocol 36, then the only way in which the UK could have sought to have the teacher returned to the UK would be to issue proceedings under the more complex Pt II of the Extradition Act 2003 (the EAW operates under Pt I). Whilst to issue such proceedings would probably have, eventually, had the desired result, it would certainly have taken much longer, even with the consent of the person the UK was seeking to extradite. Had the person not consented, then the process would have become lengthy and, significantly in these times of economic pressure, expensive for a justice system that cannot afford unnecessary expense, especially not when there is a cheaper and more effective alternative available.

These two cases show the huge importance of co-operation between EU Member States in matters of criminal justice and judicial co-operation. Without the very pieces of EU legislation that the opt-out would renounce, England would have had no way of assisting the French police in the Annecy murder case, or of asking the French police to detain Jeremy Forrest.

An under-acknowledged piece of academic literature was released in September by the Centre for European Legal Studies. The report, produced by Dr Alicia Hinearejos, Prof Steve Peers and Prof John Spencer “Opting out of EU Criminal Law: What is actually involved?” (2012), was worthy of serious consideration by the Government due to the seriousness of the matter which it addresses, and the huge risks that may be unwittingly faced if its warnings are ignored. (At this point, I should declare a bias, as I was in fact the research assistant on this project.)

The report, which concerned the possibility of exercising the opt-out enshrined in Protocol 36 of the Treaty of Lisbon regarding all criminal justice and policing measures, warned that, were Britain to exercise the opt-out and remove itself from the assistance offered by such devices as the European Arrest Warrant, Britain would find itself in serious difficulty in a number of key areas – chiefly removing criminals of other nationalities from Britain, and getting back to Britain those whom we wanted to face the criminal justice system here.

The law has never been immune from politics. However, exercising the opt-out as a political statement is a dangerous strategy, it appears that it is based solely on gaining political popularity, not with a thorough knowledge of the real effects that doing so would have on the ability of our justice system to operate effectively.


  1. Michael Torrance says

    This is a good article but it refers to ‘England’ negotiating Protocol 36, as well as being responsible for the opt-out decision. The United Kingdom is the EU Member State and the opt-out decision has implications for Scotland, Wales and Northern Ireland, as well as just England.

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