Liberty, security, and the lessons of 9/11

This will be the first in a series of blog posts examining the EU’s Justice and Home Affairs policy. This post charts the development of the policy in its historical context over the last decade or so, and examines the curious process by which measures protecting individual rights have been totally outweighed by measures enhancing the powers of the State.

The lawmaking that took place on both sides of the Atlantic in the wake of the 11 September 2001 terrorist attacks was hurried and haphazard. Sweeping powers were granted to the executive in the US by the Patriot Act; in the UK, judges have struck down key provisions of successive anti-terror bills passed by Parliament; meanwhile, approximately half of the suits challenging anti-terror legislation in the 52 years since the European Court of Human Rights held its first session have been heard since October 2001. The same applies when we consider the legislation passed by the European Union since 2001.

The EU’s activities on justice and home affairs have gradually expanded since their origin in the Trevi agreement, signed near the famous fountain in Rome, which established rudimentary police and judicial cooperation in the mid-1970s. As the EU’s borders have opened, so there has been consequent growth in cross-border crime. In this context, greater intergovernmental cooperation on matters of justice became indispensable, lest crime should cross borders more easily than the institutions which are supposed to police it. This problem pointed to the need for an expanded legal basis for cooperation.

Yet the legal systems and judicial traditions of EU Member States are diverse, and have become more so since the accession of former Communist states. And governments fear losing sovereignty over yet another area of policy, let alone one as electorally sensitive as crime. A fully integrated and harmonised system of criminal law was therefore fiendishly complicated to imagine, and politically impossible to deliver.

The Treaties since Maastricht (1992) have attempted to square this circle by basing future cooperation in the ‘Single Area of Freedom, Security and Justice’ on the principle of ‘mutual recognition’. The concept, borrowed from an analogous one used in the trade of goods and services, ‘guarantees free movement … without the need for harmonised national legislation’. When applied to goods and services, it means (for example) that Germans must accept the marketing in Germany as ‘wine’ of a drink that their law might classify as a ‘liqueur’, on the basis that the French manufacturers (who are assumed to know about such things) are legally entitled to call it ‘du vin’. One might describe this as a tolerance of your friend’s idiosyncrasies, facilitated by your mutual enjoyment of the benefits of friendship.

However, when applied to justice, the same principle becomes far more serious. In theory, the Member States of the EU recognise and trust that each other is committed to the same ‘European’ values – human rights, democracy, the rule of law, and so on. But they also, as good multicultural democracies, understand that these values will be applied differently in different contexts, and therefore offer each other assistance based on their trust and ‘mutual recognition’ of each other’s judicial and police procedures. Yet in practice this can lead to serious consequences for individuals (because people’s freedom is at stake), not to mention misunderstanding, mistrust, or even disbelieving outrage when other nations’ justice systems swing into operation on ‘our patch’.

Any trade unionist (or corporate lobbyist) will confirm that there is nothing new in the idea that diverse actors should combine for their self-interest in the face of a common threat. Equally, as any rational observer of major banks since 2008 would warn, combinations of the powerful carry with them great risk if there are no countervailing structures to voice the interests of the weak. And there has not been nearly enough attention paid to the protection of fundamental rights in the rush towards greater cooperation. Indeed, the practical manifestations of EU justice policies have been overwhelmingly illiberal. If they are not to be described as repressive, it is solely because their design has been characterised by ineptitude and half-heartedness, rather than by malice aforethought.

A good example is that of the European Arrest Warrant (EAW), which is (thus far) the longest-standing and most significant monument to mutual recognition in criminal matters. It came into effect in 2004, as an attempt to reform the cumbersome and time-consuming web of extradition agreements among countries.

Extradition proceedings frequently took over a year, and some countries refused to extradite their own nationals at all, preferring instead to try them on their own soil for offences committed abroad. Judicial authorities in extradition proceedings usually have to give some consideration to the merits of the case. If the case was weak, extradition tended to be less likely. Likewise if the extradition was likely to subject the accused person to cruel or inhuman treatment, or the death penalty, many countries refused to extradite. Wealthy suspects with expensive lawyers were often able to delay justice nearly indefinitely. This was a system with many shortcomings.

The EAW greatly streamlines the procedure, and the grounds for refusal to surrender a suspect are strictly limited, so that judges can question whether the warrant has been correctly requested, but (generally) have no role to play in determining the merits or otherwise of the case. This has reduced the time taken to surrender criminal suspects between EU countries. There have been notable successes: the speedy arrest in Rome of Hussain Osman, wanted by Britain for the attempted London bombings of 21 July 2005, is one such example.

But the shortcomings of the EAW are well-known, and are those of a system whose greater efficiency initially masked its lack of safeguards. Its disproportionate use for minor crimes means that some of its targets have had their lives wrecked for cases of the pettiest kind. The lack of a facility for refused warrants to expire (instead, they can only be withdrawn by the issuing country, which may neglect to do so) means that some entirely innocent people have been hounded repeatedly, for years. And the fact that judicial authorities cannot examine the basis for the warrant has created great unease, because individuals have been surrendered for acts that may not constitute a crime in the executing state.

Only the last point is likely to be an inevitable consequence of mutual recognition, and indeed the issue of sovereignty in European justice issues is always touchy. But the other problems simply discredit what should be seen as one of the EU’s chief achievements in justice policy. They are a result of the lack of safeguards, itself caused by poor planning and hurried legislating in the wake of 9/11. Even then, many of the problems were foreseen by MEPs at the time of the law’s drafting. But at that time the European Parliament’s powers were far smaller than they are now. This in itself points to the wisdom of greater democratic oversight.

Fortunately, the Treaty of Lisbon has given greater powers of co-decision to the European Parliament, and it is now easier to add retrospectively safeguards that should have formed part of the original legislation. Reform of these existing measures should be the first priority. Earlier this week, QCEA attended an event on the EAW at the European Parliament organised by Fair Trials International (FTI), which has campaigned extensively on the EAW. Judging by what seemed to be complacent and entrenched attitudes among the European Council representatives who spoke on behalf of member states in defence of the status quo, even enacting FTI’s modest and constructive suggestions may prove an uphill struggle. One Council representative appeared to suggest that reform would admit the failure of the system, thereby disgracing it. But as one of the panellists, Sarah Ludford MEP, pointed out, the protection of fundamental individual rights against overmighty state power should be seen as a positive addition to the existing legislation, not a regrettable subtraction from it: EAW plus, rather than EAW minus.

As Quakers, we often focus on developments and ideas at the fringes of the criminal justice system, preferring to pioneer groundbreaking ideas like Circles of Support and Accountability and thereby to demonstrate that love and mercy have a valid place in the criminal justice system. It is important, though, that we do not take our eyes off the mainstream. Future posts in this series will examine other developments in this vital area of policy.

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About Ben Jarman

Ben is a keen cyclist, former teacher, blogger, and works in criminal justice policy.

One comment

  1. Pingback: Two recent CJ posts from my work | Ben Jarman

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