Criminal Sanctions

European Standing Committee B

Wednesday 15 September 2004

[Mr. James Cran in the Chair]

Criminal Sanctions

[Relevant Document: European Union Document No. 9317/04.]

2 pm

The Parliamentary Under-Secretary of State for the Home Department (Caroline Flint): I welcome all hon. Members back from the summer recess. The Government thank the European Scrutiny Committee for providing this welcome opportunity for us to explain our approach to the Green Paper. People will recognise that the paper is wide-ranging. Its proposals are not cast-iron. Rather, it is a preliminary instrument intended to promote a debate—I am sure we will have that this afternoon—on the development of EU action in this regard. The paper raises interesting possibilities, but does not commit us to do anything that we do not want to. Nevertheless, as the Committee's report said, the paper is an important document, not least because the responses to it are not only from member states—non-governmental organisations can also comment—and obviously it will help to influence the direction of future work.

We welcome the Green Paper's acknowledgment of the importance of the principles of proportionality and subsidiarity, and of the differences in criminal justice systems that are deeply rooted in national legal traditions. The European Commission rightly concedes that that area is at the heart of member states' national sovereignty. The thrust of the paper, however, is the proposition that much deeper and extensive approximation of rules of criminal law concerning sanctions is required to secure effective mutual recognition of judgments. We take issue with some views and we do not hold that that premise should form the backbone of developments in this area.

The current EU legislative framework for common action on judicial co-operation makes a clear distinction between the role of progressive approximation in respect of serious cross-border crime and the role of other action designed to facilitate closer co-operation between the relevant competent authorities of member states in criminal matters. On the former, the UK has been prepared to examine the potential benefits of approximation of criminal acts and penalties in order to tackle common threats of a serious nature. All hon. Members will understand what that means. Examples are trafficking in drugs and human beings, sexual exploitation of children, money laundering and currency counterfeiting. On the

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last, we have supported measures to enhance member states' ability to assist one another in investigating and prosecuting cases with a cross-border element.

I am concerned, however, that the Green Paper pays insufficient regard to the distinction between those two areas of work. The Government also have doubts that many sections of the paper sufficiently justify its conclusions on subsidiarity and proportionality. That said, we believe that some aspects of the paper should receive cautious support. The key is added value. Further initiatives at EU level may produce benefits in both areas beyond what can be achieved at national level. For example, there may be scope for further approximation within the new justice and home affairs work programme to address more serious cross-border crime, such as illicit trafficking in weapons, munitions and explosives, and in nuclear and radioactive materials. There may also be added value in considering financial penalties for legal persons.

As regards measures to facilitate closer co-operation between the relevant competent authorities of member states, the Government believe that an approach focusing on mutual recognition of our different legal systems could provide benefits. The recognition of convictions for sentencing purposes and of decisions to obtain evidence from other member states are examples of areas in which we believe that we can be more positive, but of course we will also make it clear that we will firmly oppose any unwarranted attempts to introduce general harmonisation. We will, for example, resist any moves towards obligations to introduce changes to our prosecution system or our overall sentencing law and policy.

Overall, our approach should be to defend our position robustly where necessary, while giving selective and cautious support to some sections of the Green Paper, rather than dismissing it as a whole.

In its report, the Committee mentioned the concern that the Green Paper was produced before the enlargement countries officially joined the EU. To that end, the time for comment on the paper has been extended to allow those countries due time to do so. Clearly, the paper does not necessarily represent all those different legal traditions, and I am sure that the enlargement countries will have much to comment on in that regard.

The Chairman: We now have until 3 o'clock at the latest for questions. As usual, I remind the Committee that questions should be brief. There should be plenty of time for everybody.

Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): I draw the Minister's attention to paragraph 3.1.8 of the Green Paper. Under the heading, ''Enforcement of criminal penalties'', it states:

    ''Suspended enforcement of a penalty is possible in only a minority of Member States''.

That is patently not true; it does not include UK jurisdiction. I wonder whether several parts of the document that I have read are accurate. I hit on that example during a cursory glance and I am concerned. Has the Minister had a chance to read that paragraph?

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Caroline Flint: I thank the hon. Gentleman for raising that point and I shall examine it further. We want to ensure that the document is as accurate as possible and I shall study that particular paragraph.

Mr. Kelvin Hopkins (Luton, North) (Lab): I welcome the Minister's statement as reassurance on the matter. However, does she agree that wording such as

    ''should be, analogous to a unitary State in which a single system of law is to apply'',

which is included in the European Scrutiny Committee report, rings alarm bells?

Caroline Flint: I agree with my hon. Friend. As I said, the document re-emphasises the issues of proportionality and subsidiarity. However, in its treatment of the extension and range of areas for us to consider or debate on approximation, it goes beyond the boundaries and infringes on the tenets of the way in which we have developed our co-operation in regard to criminal law. As I said, it is a debating document, which gives us and other member states the chance to raise such points, but there are certain contradictions in the document and how it has been presented.

Mr. Jonathan Djanogly (Huntingdon) (Con): When do the Government intend to respond to the Green Paper? Why did they miss the July deadline to do so? Are there are any likely negative implications that could arise from that?

Caroline Flint: The Commission adopted the Green Paper on 30 April this year, requesting responses by the 31 July. Experts met to examine the paper in June, during which time delegates requested that the deadline for responses be extended; that might have also been because of the accession countries entering the EU. The deadline was formally extended to 15 September. In response to a separate request from the United Kingdom, which was prompted by the scheduling of today's debate, we extended our deadline to 15 October. We felt that it would have looked inappropriate for us to send our response without having today's debate.

Dr. Nick Palmer (Broxtowe) (Lab): I am concerned about the somewhat sceptical tone of the reception of the proposals by my hon. Friend the Member for Luton, North (Mr. Hopkins). Does the Minister not accept that with more people working abroad and moving around different EU countries, other things being equal, it is desirable that criminal law be similar so that people do not inadvertently commit crime because they cross a border and the rules are different?

Caroline Flint: The European arrest warrant gives an indication of how we recognise that people are travelling across Europe more. Whether other European nationals come to the UK to commit crimes or vice versa, we should create a secure environment for people to holiday, work and live. However, we must have a proportionate response. Not only do we have different legal and judicial systems, we apply the law differently on conviction in terms of sentencing and alternative sanctions. The thrust of the paper,

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which seeks to explore the possibility of common sentencing policies for custodial and alternative sanctions, would be almost impossible and could detract from areas of mutual recognition that we already have. I hope that that answers the hon. Gentleman's question.

In answer to the earlier question from the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), paragraph 3.1.8 does not mention the UK, and we shall bring that oversight to the attention of the Commission.

Mr. Llwyd: May I draw the Minister's attention to the Government's response dated 10 June 2004? It says that the measures aimed at the approximation of substantive criminal law can be supported only if there is a robust justification for such approximation. Would she care to expand a little on the use of the word ''robust'' and perhaps give us some examples?

Caroline Flint: As I said, people's attention has focused on areas where there is serious cross-border crime, organised crime and especially the sexual exploitation of children. The UK has contributed a great deal to getting an understanding of those offences and finding ways to work better together. As for robustness, it is about proving the case and seeing how further approximation would help us to deal with criminal offences. We also have to recognise where we are simply duplicating or where a matter is best left to the member state to deal with. Mutual recognition and trust come into the equation too. The case has to be proven and in terms of the areas of extension suggested by the paper, we do not think either that it is proven or that there is a practical way to get around the huge number of difficulties arising from the historical, cultural and social environments in which member states operate their criminal law.

Mr. Hopkins: I continue to be reassured by what my hon. Friend is saying. I am still concerned that the document looks like the thin end of a federalist wedge. Will the Government make it clear to colleagues in the EU that we do not accept the federalist drift of such documents even though we may accept the need and benefits of cross-border co-operation on crime?

Caroline Flint: Yes, we will. I would not like anyone in the Committee today to get the impression that where there is evidence of a need we should not seek to work co-operatively. I have been in a number of debates in Committee where we have talked about cross-border and organised crime, drug trafficking and sexual exploitation of children. They are clearly areas where collaboration on various fronts is needed. But that should not mean that there is an open door to extending this to the full range of offences for which a person could be arrested and charged. Our view is that the paper pays insufficient regard to the current legislative framework provided by articles 29 and 31 of the treaty of the European Union and the established principle applicable to EU action in this area. Our response will reflect that while at the same time being positive about some of the areas in which we think there could be further development and co-operation.

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Mr. Djanogly: I certainly appreciate the opportunity offered by this Committee to discuss these important issues. I note that the Government have not provided a response to the 15 questions that the Committee can review and discuss. While this meeting is good, it is only a preliminary one leading up to a response prepared by Ministers. Can the Minister confirm that at some point before October and before the response is handed back to Europe the Government's draft response will be presented to the House; preferably for debate but, in any event, for further review?

Caroline Flint: I am afraid—there is no Whip alongside me—that I cannot promise a debate in the House. Those business matters are out of my hands. I can assure him that our response will be made available to members of the Committee who will be interested in seeing the further details—[Interruption.] Yes, before we submit it to the EU. I will write to members of the Committee about that.

Dr. Palmer: My hon. Friend the Minister will perhaps know that my hon. Friend the Member for Luton, North and I tend to tug in opposite directions on these issues. Although I accept that the Government do not wish to take a federalist approach to Europe, does my hon. Friend agree that there is potential for us to learn from each other's legal systems? For example, on page 91 and the following pages, there is a discussion of the settlement procedures, which are widely used on the continent but, as far as I know, are not yet used in Britain. As a practical contribution to co-operation, do the Government have discussions with their counterparts on the continent on mutual experiences and how they can learn from each other?

Caroline Flint: I see nothing wrong with discussing how we tackle crimes in our different jurisdictions. However, we should be mindful of taking a course that would not be particularly fruitful in trying to reach a common standard throughout Europe. That is not say that there are not issues that can be discussed—without being prescriptive, because that would be unworkable—such as a common set of alternative sanctions, for example. In the spirit of what works, issues such as non-custodial sentences, community sentences and drug treatment—I am very involved in that matter, which is part of my portfolio—can be discussed with our European colleagues. However, as I said, it would be difficult to come up with an agreed menu of the alternative sanctions that would apply across Europe, and even to agree on a minimum threshold. It would not necessarily be worth the work that would have to be put into the matter. However, information on sentencing would be all right as long as it did not lead to sentencing guidance being imposed on everyone. I hope that that answers the hon. Gentleman's question.

Mr. Llwyd: To assist the Committee, there is some settlement under English and Welsh law; fixed notices and people agreeing to be bound over, which are civil, not criminal, proceedings.

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The Green Paper argued strongly for a mandatory prosecution model, whereas the Government obviously prefer a discretionary prosecution model, with which I agree wholeheartedly. I do not come from the sceptic wing of European thinking—I am right at the other end—but I would be concerned if the mandatory model were adopted because, as the hon. Lady knows, the guiding principles of prosecution in the UK are the Attorney-General's guidelines and public interest issues, which might not necessarily come into a mandatory model. I hope that the Government will maintain their stance on the matter.

Caroline Flint: I thank the hon. Gentleman for raising that important issue, which is probably one of the most contentious in the Green Paper for the UK. We agree with the hon. Gentleman; I do not cast myself as a Eurosceptic either, but to accept a premise of mandatory prosecution would fly in the face of the historical and cultural traditions of this country, which are based on evidence and on the public interest and that freedom should be allowed to continue.

Mr. Hopkins: My hon. Friend has given assurances that we will not be guided by Europe on sentencing, but it appears that that would be the implication of the proposal if were to become part of European law. Does my hon. Friend accept that sentencing is one of the most controversial issues in respect of public opinion in Britain? I may not always agree with majority opinion on particular sentences, but I know that the people of Britain guard very jealously indeed their right to determine sentencing and not to have it dictated to us by a supernatural—[Interruption.] Supranational organisation.

Caroline Flint: We have not yet brought the outer galaxies into the European Union. I agree with the hon. Gentleman; the problem is that sentencing cannot be divorced from other aspects of the issue such as arrest, charging, and the process through the courts. Let us also not forget the victims of crimes. The other difficulty is that we believe that courts must have the discretion to consider a number of factors when they come to their conclusions about sentencing. If there was some sort of prescriptive menu outside that process, that would not do justice to the victims; nor would it do justice to the defendant, who should have their case heard and the circumstances taken into account.

As my hon. Friend will be aware, the other factor is that the Sentencing Guidelines Council is now in place. A huge debate is currently taking place in the communities that we represent about sentences and how they are applied, and whether they are seen as just and right. That debate in the UK is healthy, and to remove it beyond our boundaries would be detrimental to public trust. Information on what is being done in each of our member states can, of course, be shared in order to tackle issues, but that must allow for flexibility. That area must be one of the closest to the people that we represent.

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Mr. Djanogly: One of the problems that I had in trying to get to grips with the substantive part of the Green Paper related to the quantification of the proposals. To what extent has the Home Office been looking into that side of things? For example, how many prisoners from other member states are currently serving sentences in UK prisons, and how many are on probation in the UK? And, vice versa, how many British prisoners are currently serving a prison sentence in other member states, and how many are on probation in those countries?

Caroline Flint: I do not have the exact figures to hand on those areas. However, I recall that the number of prisoners who have transferred from European countries to continue their sentences in the UK is roughly the same as the number that have gone out the other way. I do not know whether that helps the hon. Gentleman. Obviously, those numbers might increase in future. There is also the European arrest warrant and other matters in which we are examining the possibilities for mutual recognition. If the hon. Gentleman wants those specific proposals, I will try to obtain them for him.

However, I now find that I have—just like that—the figures for which the hon. Gentleman asked. The total number of EU nationals in UK prisons as at 31 March 2004 was 1,820; the total number of UK nationals in EU prisons was 871. That does not go into as much detail as the hon. Gentleman asked for, but I hope that it is helpful.

Mr. Llwyd: I do not accept the premise of the Green Paper that harmonisation of sentencing is a prerequisite for mutual recognition. I do not believe that that stands up to any real scrutiny. Those aspects are completely different. Will the Minister comment on that?

Secondly, if there were to be harmonisation of sentences, one should ask where the residual power of the Attorney-General in relation to over-lenient sentencing would be. And, on the other side of the coin, what would happen to defendants who believed that they had been sentenced too heavily? The proposal seems to drive a coach and horses through the whole system. The Minister has already said that this is a discussion document but those points, coupled with the fact that the 10 admission countries have not had any input to the paper, make it interesting but hardly practical. It will probably never amount to very much.

Caroline Flint: The hon. Gentleman makes some good points. As I said earlier in answer to my hon. Friend the Member for Luton, North, in the UK we believe that the courts and the judiciary should have the ability to decide and determine sentencing, although guidelines are provided by the Sentencing Guidelines Council and, outside those bodies, there is public debate about what is felt to be fair and just. There must be that closeness to the cases in terms of the initial sentence. The hon. Gentleman makes a valid point about who then decides whether the sentence is too lenient or too harsh. I am sure that officials are

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listening to the debate, but none the less we should ensure that we make that point in our response to the paper.

I agree with the hon. Gentleman's first point. The presumption that without the harmonisation we cannot make progress or even implement the mutual recognition arrangements that we already have is wrong.

Mr. Djanogly: Have the Government considered the cost implications of transferring prisoners from one member state to another?

Caroline Flint: The costs involved in prisoner transfer, which comes under the Council of Europe convention, are borne by the state in which they are incurred. That principle is accepted around the world, and the UK would not want to change it. That is what we are signed up to as part of the Council of Europe convention. For prisoner transfers in all other areas, although the Green Paper raises a number of questions about hypothetical scenarios if we want to pursue an EU mandate, we are happy with the Council of Europe convention. If it ain't broke, don't break it. There would be no point in trying to duplicate the convention provisions through an EU measure.

Mr. Llwyd: We are centring on what I will crudely describe as a trade-off between national sovereignty and the achievement of

    ''an area of freedom, security and justice''.

Do we not risk losing focus? We should consider whether the approximation of substantial criminal law does enough to improve our chances of tackling serious crime with trans-national dimensions. We would all welcome work to tackle such crime, but how likely is it, for example, that the harmonisation of criminal sanctions alone would lead to significant improvements in protecting children, victims of trafficking and those involved in other forms of trafficking, given the difficulties that those groups face in accessing the judicial system in any country?

Caroline Flint: These are difficult issues. A more general theme behind the hon. Gentleman's question is that it is one thing to approximate laws or have mutual recognition arrangements, but we also have to look at implementation and the ability of victims and ordinary citizens, without detailed knowledge of the laws in each member state, to access justice under those arrangements. As I said, we believe that there is a role for approximation in tackling certain clear serious cross-border criminal acts, but we should not lose sight of the fact that that is only one part of the equation in tackling such crimes.

For example, the co-operation that law enforcement agencies can have with their counterparts in the European Union is important. The exchange of information and intelligence and the security measures that we are putting into place to ensure that we can better track those involved in criminal activity in the European Union are also important. These agreements, whether they are on approximation or mutual recognition, are only one part of a much bigger

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package that has to hold together to achieve the justice and realise our intentions for the victims of the crimes that the hon. Gentleman mentioned.

Mr. Djanogly: In the Minister's opening remarks, she said that to some extent the proposals in the Green Paper would not respect the subsidiarity and proportionality principles of the EU. She did not then say in what regard they would not do so. Will she elaborate now?

Caroline Flint: To give an example, I have already mentioned clear areas of serious cross-border crime and we have looked at approximation. In my opening remarks, I mentioned some examples of where we might have to look further, including weapons and nuclear and radioactive material transfer, based on some of the horrors that we are currently dealing with. Having said that, the document goes far beyond the areas where there is a clear case for further discussion—we have not yet reached the point of final proposals—to wanting to extend approximation to the whole range of offences that happen in any given country at any given time. We do not think that that is proportionate. We believe that that undermines the principle that where a member state is able adequately to deal with criminal offences through its own criminal justice system, it should be allowed to get on with that, as opposed to a European-wide system dealing with such matters. That is why, for example, the European arrest warrant has a whole range of offences on the list.

However, we would not agree, as is suggested in the Green Paper, that approximation or some form of harmonisation should be extended to that fuller list. We do not think that that is proportionate because the basic tenet of our co-operation is that if an offence is not the subject of cross-border criminal activity or serious crime, and can be dealt with adequately by the member state, it should be allowed to deal with it. What is important, of course, is where we have mutual recognition; that is why the European arrest warrant is important. That is about trust in our different institutions and how they work. I am sure that we shall return to the European evidence warrant, which is also meant to support some of those areas of co-operation.

Dr. Palmer: One of the less controversial issues is raised in question 29 on page 74, which asks:

    ''How can the victim's interests be taken into account in the transfer of enforcement of the penalty?'',

including the prisoner being moved to a different country. Does the Minister agree that it is, at the very least, desirable that the victim be informed that such a request has been made, and that it would be reasonable to consult the victim on his or her view of the request before a decision is made?

Caroline Flint: The Government will support any provision to improve the rights of victims of crime to receive information about the progress of offenders through the criminal justice system, from beginning to end. However, we might be concerned about the type of transfer to which my hon. Friend refers being

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contingent on the victim's consent. Such matters are covered by the Council of Europe convention on the transfer of prisoners, which we must consider closely. One of the areas that we think we should examine is better access for victims, both to information and to being able to put their case, such as when a UK national is a victim of crime in another country. Similarly, on the domestic front we have been considering how to enhance victims' voices in our courts.

Mr. Djanogly: The Green Paper suggests that the transfer could be subject to the prisoner's request or consent, which prompts the question: what about the convicting country? Presumably in many cases, the public would demand that the criminal be subject to the justice of this country. What would the Government consider to be the overriding interests in such a case?

Caroline Flint: The document raises many questions about the transfer of prisoners that are hypothetical, given that we have signed up to a convention on the subject. As I understand it, the country that has executed the judgment of the trial that has taken place, the state where the enforcement of the transfer has been requested, and the prisoner, all—rightly—have a say in what ultimately happens. I understand that states have the right to refuse any request, but as the arrangements through the Council of Europe seem to work quite well, we are happy to continue to support them. As far as I know consent to transfer must be obtained too.

Dr. Palmer: Just to clarify my previous question, question 29 of the document suggests three possible levels of victim consent: either simple information, or consultation, or consent. From the Minister's reply, I think that she agrees that information is desirable, and I agree with her that a consent requirement probably goes too far, but does she agree that consultation—asking the victim to express a view before a decision is made—might be a reasonable middle course?

Caroline Flint: We are on common ground in that respect. I am happy to write to my hon. Friend in further detail about how domestic legislation, including the Domestic Violence, Crime and Victims Bill, which is still going through Parliament, will affect victims in this country. He makes a fair point about how to ensure that victims of crime, wherever the crime has been committed, have a say in the court process. I shall look into that in more detail and write to him.

Mr. Llwyd: I do not mean to be rude, but perhaps the Minister will prefer to answer this question at a future date. Adopting the procedure whereby a prisoner can request to be transferred is in line with European human rights: a person has a basic human right to be incarcerated as near as possible to where they and their family live. The adoption of that aspect of the document is inevitable, whether it is done piecemeal or in another way. What is the

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Government's view on the interaction between the basic human right to which I referred and the possibility of the proposals being brought into force?

Caroline Flint: I will write to the hon. Gentleman about that matter. We fully support the principles underpinning prisoner transfer. On his point about human rights and prisoners being closer to family and friends, and I, like many colleagues, have been involved in such cases as a constituency MP. The other question that has to be addressed is where is the best place for the prisoner and the wider community for rehabilitation at the end of someone's custodial sentence.

Mr. Djanogly: If the proposals were put into practice and a minimum sentence for a particular crime was set lower than the current minimum in this country, what would happen to prisoners serving a sentence for committing that crime? Would they have to serve their current sentence, or would it be cut according to the new lower minimum sentence?

Caroline Flint: It is interesting to speculate, but I will not because we have no intention of pursuing that route. We could spend our time discussing in detail things that might happen, but the case that the hon. Gentleman outlined is unlikely to arise. We would not support any approximation of sentencing and we would not be isolated in that view within the European Union.

Motion made and Question proposed,

    That the Committee takes note of European Union Document No. 9317/04, Green Paper on the approximation, mutual recognition and enforcement of criminal sanctions in the European Union; notes that this forms part of the wider Justice and Home Affairs agenda, and supports the Government's position that the Green Paper is a preliminary document which will need considerable further discussion.—[Caroline Flint.]

2.39 pm

Mr. Djanogly: We oppose the proposals that the Green Paper makes. From previous debates, the Minister will be fully aware of my continuing concern about the European arrest warrant, but at least that procedure allows each country to retain its sovereignty in criminal law, unlike the Green Paper, which would force a European criminal legal system on us. The harmonisation agenda marches on.

I am not against an integrated approach in every circumstance. I can understand it in situations such as the crime of forging European banknotes—the Minister gave a number of other relevant examples. I am also in favour of countries working together to combat crime, especially those crimes with a trans-national dimension. However, as the European Union Committee in the other place noted, the proposals would not be limited to cross-border crime, but would apply to crime in general. The massive overhaul of the law in all member states that would be needed to implement the proposals presents such a minefield of practical policy and sovereignty issues that I fear they are nearly impossible to implement, whatever one thinks of their politics.

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I do not know how we can have a comprehensive and accurate debate without research first being done on the systems of the new member states, as the Minister acknowledged. How can we even consider such an overhaul of the law before a detailed report is made on each of the countries involved? On a previous occasion, I asked her the same question in relation to the European arrest warrant. Can we really assume that the criminal systems of the ex-communist countries, let alone those of the western European states, would be compatible with the system in this country? It would be naive to believe that we could easily implement a uniform criminal system across countries that are so diverse and whose criminal legal systems bear so little resemblance to each another.

In addition, we have to consider the possibility of the accession of other countries, such as Croatia or Turkey. Could we really feel comfortable with the harmonisation of our criminal systems with theirs? The Green Paper states that the approximation of rules of criminal law concerning penalties and their enforcement also helps to secure acceptance of mutual recognition, as it enhances mutual trust.

Dr. Palmer: To which specific aspects of the Croatian system of law does the hon. Gentleman object, or does he just have a bad feeling about it?

Mr. Djanogly: The hon. Gentleman was clearly not listening to me. I said that I do not know—probably relatively few people in this country do—the implications of the criminal law of Croatia or Turkey being harmonised with those of western European states. That is my concern. I am not thinking of any particular problem.

Mr. Llwyd: May I move the hon. Gentleman away from Croatia and back to, say, France? I want to underline what he is saying, because I agree that there are insurmountable problems. France, for example, has an excellent system of examining magistrates. The French will not give that system up easily, nor should they, because it appears to be a useful and practical way of initiating prosecution.

Mr. Djanogly: The hon. Gentleman gets straight to the heart of the issue, which is that this country has, over the centuries, developed its own way of practising and administering law, and it is a system of which we should be proud in the same way as I imagine the French are proud of their system. The aspiration that we are talking about may be a noble one, but for the reasons that I have given, I do not know how one can honestly say that we could launch into merging our criminal legal systems on the basis of mutual trust among all member states.

It is also impractical to think that a mandatory minimum level for maximum penalties, as the Green Paper rather confusingly puts it, could be set for crimes committed across all member states. What is considered a serious crime in one member state may not be in another. National priorities and sentiments are different and change all the time. An example is drink-driving: this country has seen a huge shift of opinion on the seriousness of that crime in as little as

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20 years. Another example of which the Minister is fully aware and which is very evident in my constituency is animal rights terrorism. Public opinion on that in this country has changed hugely in as little as the last five years, but in recent months I have been speaking to journalists from all over the world, including from many member states of the EU, who have no concept of the problem, never mind what needs to be done to tackle it. Animal testing simply is not a contentious issue in their countries, full stop. I do not know how it is possible to set a minimum level for maximum penalties across 25 countries in which perceptions of what constitutes a particular crime, let alone a serious variety of the crime in question, can differ so hugely from one country to another.

The Green Paper notes that the national legal system is something that lies at the heart of the member state's sovereignty. I agree, but the proposals hugely undermine that sovereignty. Why should the power to determine what should attract a mandatory sentence be taken away from Britain? What if the overriding belief of the people of this country was so strong that there was a wave of opinion in favour of a particular crime being punished with a particularly high mandatory sentence? The power to change the sentence would no longer be ours if the proposals in the Green Paper were put into force. Imagine the outcry from the public if that were the case. I do not know how we could justify moving towards a unified criminal legal system across Europe when we still have separate legal systems within the UK. Far from giving the general public a shared sense of justice, as the Commission suggests, the British public would feel great injustice about the loss of power over our criminal justice system.

I have used the example of drink-driving before, and the Minister will be aware of the current national campaign for tougher sentencing of drink-drivers. A constituent family of mine who are heavily involved in the campaign unfortunately lost their daughter to a drink-driver on Christmas eve last year. They have started a campaign to increase the sentencing of drink-drivers and to remove a drink-driver's licence between charge and conviction. Under the Green Paper proposals, the power to change that law would probably no longer be in Parliament's hands.

The Green Paper suggests that there are grounds for considering whether life imprisonment should be abolished or modified in the Union. The British public would find that outrageous. It is inconceivable that such essential powers be taken away from us, and I consider the Green Paper to be yet another potential sledgehammer blow to our parliamentary sovereignty. Far from giving the general public a shared sense of justice, as the paper suggests, the British public would feel that they had had their justice taken away from them.

It is impractical to try to create a unified criminal system in countries whose criminal systems have evolved in totally different ways and whose frameworks bear little resemblance to each other.

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Even though the Commission has said that the criminal courts have considerable discretion in sentencing and that mandatory rules should not be laid down, it still suggests that penalties be within a particular range. If implemented, that would represent a total overhaul of all the criminal legal systems in the member states and would be mandatory in itself. What would happen to the rules governing double jeopardy for example, which vary from member state to member state?

The Green Paper also notes that prosecution procedures vary from country to country. In this country, the Crown Prosecution Service has the right not to prosecute in certain circumstances, even when the person admits guilt—for example, in the interests of national security or the public interest. However, in other member states, such as Germany, the mandatory prosecution principle applies. In practice, implementing a uniform approach to that question would mean another massive overhaul of all member states' criminal systems. Even if it were possible to change the legal systems of member states so that it became mandatory for the prosecution services to prosecute in certain circumstances, in practice a uniform approach across the EU would not follow. If police procedures differ across member states, what the prosecution services do could be irrelevant.

At street level, the procedures of police vary a great deal. In this country, police procedures for stopping and prosecuting those who break the speed limit and are caught on camera is routine. However, in some parts of other member states, it may be standard police procedure on many occasions to turn a blind eye to those who speed, whether or not the country's prosecution policies have been harmonised. Again, much comes down to public perceptions and national sentiment. The Government have expressed their support for a discretionary prosecution model. I agree with that stance, and I note that it totally eliminates the possibility of true harmonisation per se. The Government should set out clearly what their proposed discretionary model would entail and how it would fit in with the Commission's aim for harmonisation.

I find somewhat bizarre the Commission's argument that EU minimum standards would prevent offenders taking advantage of divergences between penalties in member states and moving from one to another to evade prosecution or the enforcement of penalties. Harmonisation would hardly be a motive for a criminal to commit a crime in a particular country, except perhaps for Raffles or a Mr. Big drug dealer, who would probably live in South America anyway.

Dr. Palmer: I accept that the public in general would not accept a huge harmonisation exercise across Europe but let me give a concrete example of the kind of issue that arises. The age of consent in Spain is 12, which means that if the 13-year-old daughter of a British holidaymaker has sexual relations with someone in Spain, it is not a crime. If that were generally known in Britain, there would be widespread concern. People would want us to talk to the Spaniards about whether some kind of harmonisation could be

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achieved. Does he regard it as satisfactory that such wide discrepancies exist? Does he not feel that we should make an effort to have a dialogue on this?

Mr. Djanogly: In general, I accept that countries are allowed to have their own differences based on their cultures, histories and experience. Like other countries, we in this country have traditions of which we can be proud. Even if certain offences were harmonised, prison standards would continue to vary from member state to member state. Six months in an eastern European prison may be considered to be a much harsher sentence than two years in a UK prison, or perhaps vice versa. The length of sentence in each country would not necessarily determine whether someone would want to commit a crime in one country or another—I doubt that it would be relevant. Other factors could be more or as important in dissuading criminals from committing an offence in a particular country. I note that that was the finding of the charity Prisoners Abroad.

The Green Paper is concerned with the state against the criminal. To that extent a variety of potential Human Rights Act implications would need to be reviewed. The Minister has recognised that. Putting that to one side for the moment, what about the rights of the victim? The CPS is currently working towards a system in which victims and their families are being more fully informed about the prosecution process. I congratulate the CPS on that. Victims and their families are being given more advice about possible outcomes, the prosecution timetable and the whole court process generally at what is often a complicated and distressing time for them. What would happen to those developments if prosecutions were moved offshore? There would be a chance of that progress being lost.

The issue is not two sided. The rights of the victims and their families must also be considered. It is all well and good saying that the criminal or his home state should have a say in where he is prosecuted and where he is imprisoned, but what about victims' rights to see criminals punished? I feel that a move to harmonisation of the criminal legal system across the EU could lead to the rights and feelings of victims and their families simply being forgotten.

In view of the huge implications of this piece of proposed legislation, I am pleased that the Minister has agreed to present the Committee with her report and her answers to the questionnaire before it goes back to the Commission—

2.54 pm

Sitting suspended for Divisions in the House.

3.47 pm

On resuming—

Mr. Djanogly: Let me finish by saying that in view of the proposals' huge implications, I would like the Minister to confirm that when she consults on the replies to the consultation she will consult the legal profession and other relevant groups, so that they can add their views to the issues that have arisen in the

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debate. In that respect, I note that the Criminal Bar Association has made objections and voiced significant concerns about the Green Paper. In addition, I repeat my request that the Government proposals leading from the Green Paper should be fully debated on the Floor of the House—I appreciate the Minister's saying that she would discuss that with the Government Whips.

The issues are of significant national interest and my concern is that harmonisation should not be allowed in through the back door, as has so often happened in the past. It appears from the Minister's responses to questions that the Government's attitude to the Green Paper is lukewarm. However, although they will not support much of it, once again they will just allow it to run its passage in Brussels and see what comes out at the other end. We have seen that approach before, and its effect, willingly or unwillingly, is creeping harmonisation. We want the Government to speak out positively against the Green Paper and to stand up for the British interest. The central proposal in the Green Paper, that there can be approximation, is barmy. It is completely impractical and against our national interest, and it will probably undermine the both position of victims of crime and this country's parliamentary sovereignty.

3.49 pm

Mr. Hopkins: Mr. Cran, let me say what a pleasure it is to sit under your chairmanship, especially as we are discussing a subject in which I suspect we have a mutual interest. I am reassured by what my hon. Friend the Minister has said about the Government's reservations, so I shall make a short speech. It was going to be more generously proportioned, but much has already been said with which I agree and it does not need to be repeated.

My purpose is to reinforce the Government's resolve in resisting some of the nonsense contained in the Green Paper, which seems to have been inspired by the federalists at the core of the Commission. I suspect that there will be opposition to the proposals in many other member states and that there will be many reservations. I am also confident that the proposals will be resisted in Britain generally, even at the highest level. Many of our senior colleagues in this place are lawyers—I am not—and I suspect that they will not want their legal system to be mucked about with by the European Commission. They are not terribly keen when Parliament intervenes in their honoured profession, even through ultimately we have the right to determine legal provisions.

I believe that the paper is inspired by a drive towards federalism. The Government are resisting it, and they are wise to do so. The proposals, if taken too seriously, would not make the British people any more enthusiastic about Europe. The practical difficulties of melding the legal systems of the various countries in Europe would be almost insuperable. The legal systems are so different that even a partial merger would pose enormous difficulties.

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A country's legal system is a reflection of the democratic will of its population and its political culture. Every country enjoys and supports its own system and its own legal culture. There are times when countries can learn from each other. If we were to discover that different sorts of sentencing had a beneficial effect in reducing crime, we might change our sentencing policy for practical and sensible reasons. However, that policy should not be determined on the advice of some supranational organisation. Question 26 on page 74 of the bundle asks:

    ''Should provision be made in the European Union for the possibility of adapting, converting or substituting penalties, or should the State of enforcement be left with full powers of discretion?''

I suggest that full powers of discretion would be appropriate, and I hope that the Government will give similar answers to other questions posed throughout the document.

My hon. Friend the Minister talked about the possibility of harmonisation on cross-border crime, but even in that respect our approach is different from that of our neighbours. For example, we have not accepted the Schengen agreement. We have a different approach to importing alcohol, and different levels of taxation. There are all sorts of differences between countries—not just between Britain and other countries—that might mean that they would want to take different approaches to sentencing. A country that borders Russia, for example, might have very strict penalties for gun-running—it might want to target gun-runners from the old Soviet Union—whereas that issue would not affect Britain, because we are not in that area.

Other countries, which have more liberal approaches to serious crimes, even to murder, might, for their own cultural reasons, want to have much lower sentences than we would; they might find that beneficial or more acceptable to their population. In Britain, the population traditionally have taken a fairly strong view of sentencing—sometimes too strong, in my view. We must be practical—we cannot have the whole country full of prisons and prisoners—and we must be reasonable in asking whether prison is the appropriate place for some of those people, and whether they should be there for long. One can debate such matters. However, there is a strong feeling in Britain that sentencing should be strict and tough, and I suspect that we would not want a more liberal approach to certain forms of crime to be imposed from outside. That would exacerbate tensions between Britain and the European Union. One could go on at length about that matter.

I have strong views on sentencing, but I am only one individual. However, I broadly sympathise with our approach to law and sentencing in Britain, and would be unhappy about the progressive imposition of a generalised approach to sentencing. I suspect that many other countries would agree and that it is only a small core of people who take the strong federalist view—the Giscard d'Estaings of this world—and

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really want to push hard in that direction. I suspect that the Green Paper will sink and not go far. I certainly hope so and I hope that our Government will help to sink it before long.

3.55 pm

Mr. Llwyd: I shall keep my remarks brief in light of circumstances elsewhere. The Green Paper is based on a false premise. It is implied in the body of the Green Paper that harmonisation of criminal law must be a precursor for mutual recognition. I do not accept either the logic or the practicality of that, and it is a bad position from which to start. I do not make these remarks as a sceptic, unlike the two hon. Gentlemen who spoke before me—we are all entitled to our views. None the less, I find myself agreeing in large part with what they said. No doubt that will be the kiss of death for me in my party, but I can imagine worse things. I am not saying that we should not take the Green Paper seriously, but having read it I find it difficult to take it seriously.

First, there is the contrast between adversarial proceedings in the UK justice system and the investigative system in France. I think that the investigative system is good, but it will never happen in the UK. Things are unlikely to change in England and Wales, and I do not think for one moment that our colleagues in France are likely to change things there either.


Mr. Hopkins: To reinforce what the hon. Gentleman is saying, it is perfectly reasonable of any country to choose to adopt the system of another country if they find it useful or beneficial. However, that should not be imposed from outside.

Mr. Llwyd: Yes. My point is that the French will not gladly give up their investigative system and I am pretty sure that the UK will not give up our adversarial system. That scenario would be multiplied by 25 to account for all the member states—or even 26, because Scotland's legal system is different from the system in England and Wales. Following on from what the hon. Member for Huntingdon (Mr. Djanogly) said, perhaps the Minister can advise the Committee by letter or otherwise of the number and identity of the stakeholders likely to be consulted.

I shall now turn to commonality. In England and Wales, free legal advice is available when someone faces possible criminal charges. Although free legal advice in criminal or civil matters is not a human right, we have accepted it as being fundamentally important to proceedings and to ensuring that justice is done. Not even half of our partners in the new European Union have such a system. Furthermore, the presumption of innocence is a key presumption in any court of law in England and Wales and has been for centuries, but that presumption does not exist in some partner countries—for example in the Spanish legal system, the opposite is the case. That would pose a huge problem. As the hon. Gentleman mentioned, double jeopardy is more or less intact in this country, although one does not like to speculate whether it will be under the coming Administration. It has existed here for

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centuries. In France there is the defence of crime passionel—the crime of passion. Will we adopt that defence into English and Welsh law? I do not think so. We also have automatic sentences in the UK system for three strikes. That would strike a discordant note and not endear itself to many of our EU partners.

We heard earlier about the Attorney-General's role in issuing guidelines for prosecution. There has to be a certain amount of evidence, a level of certainty of conviction, and consideration of the public interest: those are three main parts of the guidelines. Are we going to throw that out completely if the Green Paper is implemented? I do not think so. Also, we have what I always considered to be a very welcome move, in that over-lenient sentences can be appealed to the Attorney-General. That is a very important reform. From day to day, wearing my other hat, I encounter that provision and find it extremely useful.

Public opinion has, and should have, a role in determining sentencing. I am not saying that it should be driven by pubic opinion, but I have no doubt that the sentencing college and the judges' sentencing conferences take account, quite properly, of the way in which public opinion shifts from time to time. I remember when I was a young lawyer prosecuting a case for an assisted suicide. To be brief about it, a lady was absolutely riddled with cancer and lived with a gentleman whom she asked to put her out of her misery, and he administered a noxious substance. The fear then was that he would spend a considerable amount of time in prison, but at around the same time—I am talking about 25 years ago—there was a sea change in opinion about those matters. Since then, of course, things have changed considerably: we talk about euthanasia and such matters within Parliament. It is vital that we make provision for a shift of public opinion because, after all, the legal system must represent the society that it serves. If it does not do that, it is of no use. Policing and justice are there by the consent of the people. There is a role for them and the supranational system that is being mooted in the Green Paper would do away with that, and I believe that that would be absolutely unhelpful.

Of course there is a great degree of co-operation between police forces throughout the European Union. There is Europol, and as the Minister said, some offences, such as the extremely serious offence of trafficking of nuclear material, are dealt with by Europol and Euratom combined. That is perhaps another reason why the Green Paper might ultimately be a waste of time.

We have had for 18 months a law saying that EU police officers can operate on the UK mainland—in hot pursuit, and so on. There are reciprocal arrangements in other countries, so there is a degree of co-operation. Let us mutually recognise our different systems and work together on the question of enforcement, crime prevention and detection. Let us work ever closely. There is no problem with that; we do not need to change our individual systems in order to do that because the basic pillars are there already—I just referred to them. However, I believe, having read

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this Paper, it is difficult to stomach and would sum it up by saying, ''Nice idea, no practical application whatsoever.''


Caroline Flint: Mr. Cran, thank you for overseeing our proceedings this afternoon. We have eventually reached our final destination, despite interruptions downstairs. I thank your officials and mine for their support to the Committee, and I thank also to all those who were present, especially those who made a contribution.

I want to say from the outset of my closing remarks that we should be very clear about the context of this Green Paper. It is a discussion paper, not a specific legislative proposal. It is not binding and does not commit us to anything. Despite our discussions this afternoon, and all the ideas that have been thrown into it, it still makes the point that different member states have different criminal justice systems, which are deeply rooted in national legal traditions. It also talks about proportionality and subsidiarity, which underpin our involvement and engagement in criminal justice issues.

It is important to say that, because some of the language that we have heard this afternoon, such as that from the hon. Member for Huntingdon, might, if taken out of context, send from this Room the message that the Green Paper has greater weight than it actually has. That might be one reason why it would be quite difficult to secure a debate on the Floor of the House; we are nowhere near the stage of identifying proposals on which we want to take a decision. We have debates in Committees such as this in order to talk about such proposals at the outset and deal with them accordingly.

Mr. Hopkins: I am somewhat comforted by what my hon. Friend has said. Is she suggesting that a debate on the Floor of the House would give the proposals more credibility rather than less, and therefore start too many hares running?

Caroline Flint: That is a point of view. One process of scrutiny involves having this sifting arrangement so that we can explore issues that people in Europe have raised, but we should always be mindful of the difference with discussion papers. That is not to say that we should not take them seriously. We should take all papers seriously, which is why we have the scrutiny process, but we should deal with them proportionately according to their weight and influence. I agree with a number of colleagues that some of the comments raised here will not be found to be isolated comments when we get full responses from other member states.

On the consultation process, I say to the hon. Members for Huntingdon and for Meirionnydd Nant Conwy that I did say at the start that the paper is open to comments not only from member states, but from NGOs. We have consulted the legal profession, but I understand that the Law Society and the Criminal Bar Association are providing their own, direct responses as part of the process. A number of voices from within

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our communities and our country will therefore make their views known. I understand also that the Scottish Parliament intends to respond, but its response will probably go under the same cover as our response.

Mr. Djanogly: The Minister rightly says that the report acknowledges the concepts of subsidiarity and proportionality, but I thought that we had agreed among ourselves in questions at the start that the EU has, to a great extent, ignored those concepts, even though it says that it is taking notice of them.

Caroline Flint: I would not say that the EU has ignored those concepts. If it had, the document would not have referred to them in the first place. What I would say is that there is a contradiction between some of the ideas that it has placed before us for discussion and wanting at the same time to keep to the tenets of proportionality and subsidiarity. I concur with the hon. Member for Meirionnydd Nant Conwy that to an extent some elements of the paper lead us nowhere, because they are undermined by the principles outlined in the initial parts of the paper.

The document has raised interesting points but the Government, who seem to be supported by hon. Members in this Room, are clear that we see no further need for harmonisation in the ways that the paper suggests, and we will advance those views strongly. I say to the hon. Member for Huntingdon that I always speak on behalf of British interests when I attend the Justice and Home Affairs Council; indeed, the Government, across every Department, always speak in favour of British interests in our engagement with Europe.

As I said before, we may want to explore certain areas further. One example, which has not come up in this debate, is a database of judgments. One issue that has been of concern to people in this country and other parts of Europe is whether it is known, at the point of sentencing, whether someone has had convictions for other offences. I do think that that area needs anything like approximation. I am referring to a more effective system of ensuring that if someone appears in this country or elsewhere in connection with an offence, there is easy access at the point of sentencing to knowledge of any past criminal activity, so that the judge can make an informed decision. I think that that would be welcomed by people throughout our islands, and I think that that is very important.

As I also said earlier, we may want to consider issues relating to trafficking in weapons, munitions and explosives, and nuclear and radioactive materials. However, I take the point made by the hon. Member for Meirionnydd Nant Conwy that we must consider any existing arrangements or discussions before embarking on new ideas or directions. At all times, we must bear in mind what is in the interests of member

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states. We do not want to duplicate what member states can competently do on their own, and we must ensure that we are not pursuing a path that is already covered by other arrangements. Those aspects are important.

The Green Paper is not about forcing anything on anyone; it is part of the democratic process. In any democratic process, we start with a number of ideas being floated, but that does not mean that we end up with them. I hope that hon. Members are assured that the Government—we will not be alone in this—will not accept the harmonisation that the paper describes.

The comments of the hon. Member for Huntingdon seemed to imply the suggestion that if a foreign national were arrested in this country, they could seek prosecution in their country of origin. That was the gist of his comments, but there is no indication of that, even in the Green Paper. If someone is arrested in this country, they will be charged and tried here. That is important.

We have had a helpful and constructive debate. I hope that it has clarified the Government's thinking and put the paper into its proper context in terms of its status and influence. As I said, we have been granted an extension to the deadline for the submission of our response to mid-October, and we will of course provide a completed response to the Committee. I welcome the contributions made this afternoon, and I hope that in dealing with the paper we remember that there are other ways that we can co-operate across Europe to good effect.

To give one example—I shall end on this—in June this year, EU Ministers agreed a programme to combat the illegal and harmful content that is found on the internet. We know that the internet does not recognise borders and that, in terms of paedophilia and child exploitation, it can be a particular danger to our children. The EU Ministers have agreed to look at reporting internet content to helplines for victims or people who are concerned about what they see on the internet and at funding technological advances to allow users to filter or limit the amount of such material that they receive.

That is just one example of co-operation. It does not require an approximation of law, but an engagement in the issues and an agreement to act on something that does not recognise our national, or even European, boundaries; it is far more global than that.

Question put and agreed to.


    That the Committee takes note of European Union Document No. 9317/04, Green Paper on the approximation, mutual recognition and enforcement of criminal sanctions in the European Union; notes that this forms part of the wider Justice and Home Affairs agenda, and supports the Government's position that the Green Paper is a preliminary document which will need considerable further discussion.

        Committee rose at thirteen minutes past Four o'clock.

The following Members attended the Committee:
Cran, Mr. James (Chairman)
Cairns, David
Farrelly, Paul
Hopkins, Mr.
Llwyd, Mr.
Palmer, Dr.
Tami, Mark

The following also attended, pursuant to Standing Order No. 119(5):

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Djanogly, Mr. (Huntingdon)

Flint, Caroline (Parliamentary Under-Secretary of State for the Home Department)

McIsaac, Shona (Cleethorpes)


Here you can browse the debates in the House of Commons European Standing Committee B

* Membership of the Committee

Reports of proceedings

* Criminal Sanctions 16 September 2004
* Preliminary Draft Budget 2005 30 June 2004
* European Communities (Staff Regulations) 23 June 2004
* Establishing a European Defence Agency 22 June 2004
* Support for Occupied Palestinian Territories 11 May 2004
* Asylum Systems 21 April 2004
* Value Added Tax 10 March 2004
* Protecting the European Community's Financial Interests 23 February 2004
* Procedures for Granting and Withdrawing Refugee Status 5 February 2004
* Security at European Council Meetings and Other Comparable Events 10 December 2003