How our legal system is being destroyed by stealth in favour of the Napoleonic system

David Delaney - www.eurofollies.org.uk

First, here is how it used to be:

In Britain our ancestors, starting many hundreds of years ago, evolved a systematic bias in favour of the defence in criminal trials. Thus we have habeas corpus, to prevent a person from being held in captivity without charge or conviction. We have the presumption of innocence, so that the whole burden of proof falls on the prosecution, and that any substantial defect in the prosecution case must result in an acquittal. We have trial by jury and lay magistrates, to ensure that judgments of guilt or innocence shall be made by a defendant's peers, and not by a judge employed by the Crown. And we have the double jeopardy rule, to ensure that an acquittal is the complete end of a prosecution, and that a defendant need not live under fear of being tried again before a different judge and jury or in a different climate of opinion. (Sean Gabb Libertarian Alliance 6/3/01)

The revolution starts with a report for the European Commission called Corpus Juris.

Corpus Juris is a prototype EU criminal code that explicitly does away with Trial by Jury. The declared intention is to extend this system to eventually cover all fields of criminal activity. British citizens in Britain will be liable to arrest (and deportation) with no Habeas Corpus (i.e. no obligation to show that the prosecution have bothered to collect any evidence against the prisoner at all) nor any safeguard of extradition proceedings, and to be tried and convicted in Britain, as well as elsewhere, by courts that explicitly exclude "simple jurors or lay magistrates" (Art 26(1) of Corpus Juris). The only limitation on the European Public Prosecutor's power to arrest and hold somebody indefinitely is that he has to have the authorisation of the so-called "Judge of Freedoms", whose duties do not include any scrutiny of prima facie evidence, to do so, at the start, then after six months, and then every three months after that.

The authorisation decision is not taken in or at the end of a public hearing, with a debate between prosecutor and defender, but (as in Italy today) in the privacy of the "Judge of Freedom's office"; The Judge of Freedom's duties do not include any scrutiny of the grounds for ordering the arrest - there is a mention of the charge, but no evidence need be produced at all. The European Public Prosecutor can appeal against an acquittal. No longer will a suspect, once acquitted, be free from retrial on the same charge (FFP/Eurofacts 20/11/98).

Tony Blair's government has read Corpus Juris and his Home Office Minister Kate Hoey has stated that they think it threatens our "national sovereignty" and our "human rights" and says if it were ever presented we shall veto it. (Eurofaq posting Torquil Dick-Erikson 25/12/98) As a founding father of the European Union Arnold Toynbee said: "We are at present working discreetly with all our might to wrest this mysterious force called sovereignty out of the clutches of the local nation states of the world. All the time we are denying with our lips what we are doing with our hands...." Now read how Tony Blair is following Toynbee's hallowed principle...

The UK Home Secretary Jack Straw has issued proposals to abolish the right to trial by jury for a wide range of middle raking offences. He said other countries regard our system of jury trials as "Eccentric". One option is the complete abolition of jury trials. (Guardian 29/7/98).

The Times (19/1/99) has a comment on the effects of the incorporation of the European Convention on Human Rights into UK law - and mentions, en passant, one UK anomaly, - our verdicts are "unreasoned", i.e. no reasons are given for them, because they are given by juries, who are presumed to have been convinced by the reasons given by the prosecution (when they say "Guilty") or by those of the defence (when they say "Not guilty"). Under the continental inquisitorial system, verdicts are given by professional judges who also give their own written reasons for them. This is considered a "right of the defence" (to know the reasons why the prisoner was convicted - and it is supposed to be useful because the trial is often conducted in a manner partly incomprehensible to a layman, but then the "written reasons" are often equally incomprehensible!). And this "right of the defence" to have written reasons given for a conviction is written into several continental Constitutions. So it is only a small step from there to saying the "right" for a verdict to be given with written reasons for it, is a "human right and fundamental freedom" as per article F1. It is also then seen that all the EU nations have this, except for the UK, so it thus becomes a "principle...common to the Member States". The UK then gets asked to adopt it, (which means basically introducing verdicts given by professional judges, so abolishing juries, or at least independent juries). If the UK then says, "No, we won't do that" then the UK gets its voting rights suspended and the abolition of juries (for all crimes, not just for fraud as per with Corpus Juris) is imposed upon us. (Eurofaq posting 19/1/99 & T Dick-Erikson)

The presumption of innocence is the legal principle that guarantees our civil liberties, yet Labour is actively subverting the rule in order to bring Britain into line with 'the Continental practice'. The Government has signed up to the EU's Burden of Proof Directive on sex discrimination, which exposes employers to lawsuits that treat them as guilty until proved innocent in cases involving female 'staff. It will not be restricted to gender disputes for long. The Amsterdam Treaty extends EU competence to cases involving age, sexual orientation, disability and, above all, race. The EC is at work on the next text. The directive is yet another headache for small businesses struggling to cope with the workplace regulations brought in after the Government signed the Social Chapter. The EU threat to our legal system can no longer be shrugged off. The European Parliament has voted for a system of Corpus Juris that would do away with habeas corpus, jury trials and the presumption of innocence in criminal cases. There are plans for a European Public Prosecutor with powers to arrest anybody, with preventative detention, for unspecified crimes against the EU. It seems implausible now that any British government would ever allow such reforms to occur, but then it seemed implausible not long ago that we would meekly surrender our ancient presumption of innocence. (Daily Telegraph 16/7/99)

(In case your European Arrest Warrant takes you to France, here is what awaits you): France has been shamed into promising reform of its prison system after a doctor exposed brutal and inhumane conditions in the 19th Century La Sante jail in Paris where she worked for eight years. Rat-infested cells, mattresses full of lice and cockroaches, corrupt guards, who deal in drugs and rape prisoners, and self-mutilation by inmates forced into slavery, are some of the horrors exposed by Dr. Veronique Vasseur. Half of France's prisoners are awaiting trial. (Sunday Telegraph 30/1/00).

The UK Government came under fire on Thursday from the Internet community after it published a Bill to regulate covert surveillance. The critics say the legislation, if passed, could lead to innocent people being sent to jail simply because they have lost their data encryption codes. The Regulation of Investigatory Powers Bill covers the monitoring and the interception of communications by law enforcement and security agencies, social security and tax inspectors. At issue is the burden of proof. Critics of the legislation say someone might go to jail unless they could prove they did not have a requested key - an impossible defence for someone who has lost the software code. The presumption of guilt remained for those who had genuinely lost or forgotten their keys. (Ian Geldard, London, England 15/2/00 and FT 11/2/00).

There are moves afoot to dispense with the lay magistrates altogether and to re-name magistrates "District Judges". Many rural Magistrates Courts are to be closed as they will not have the necessary requirements, e.g. secure docks, etc as required by the Human Rights Act. (Letter Daily Telegraph, 16/9/00).

The draft Hunting Bill and the Scottish private member's Bill both reverse the burden of proof on the accused, requiring them to prove that they were not engaged in hunting, rather than for the police to prove that they were. (Daily Telegraph 27/11/00)

MEPs are voting for a European Police College tasked with "developing a European approach in the field of crime-fighting, border surveillance, protecting internal security and maintaining law and order". They will also be voting for a judicial co-operation unit, Eurojust, "composed of prosecutors, or magistrates, to reinforce the fight against serious organised crime", and separately for a set of measures to create a "genuine European Area of Justice" that will lead to "the emergence of a European criminal law". Europol, the EU's emergent FBI, is being given powers to investigate money-laundering stemming from all forms of crime. This sounds routine. It is not. It provides the EU with the equivalent of the US federal mail fraud clause, the instrument used by Washington to assert federal jurisdiction over state crimes. Once the Europol Convention comes into full force, Europol officers will be able to initiate probes and take part in field operations against suspected criminals in Kent, or indeed against xenophobes in Kent, since the Europol mandate covers "xenophobia". Is Euro-sceptic dissent xenophobic? Europol officers have immunity from prosecution for life. (Daily Telegraph Wednesday 15th November 2000)

Abolition of the distinction between solicitors and barristers brings us into line with the EU. Judges can be drawn from outside the practice of law, e.g. universities. (I am informed that all academic lawyers are fanatical Europhiles). Judges are to be given more responsibility for administering the courts. This will include questioning witnesses. Eventually they will take over from the Crown Prosecution Service and become "investigating" judges/magistrates. (Sir Ivan Lawrence MP - Congress for Democracy 2/2/01)

The new UK Terrorism Act implemented on Monday February 19, 2001 includes a "special power" to search without a warrant, where a suspect must then give an explanation for anything found, another reversal of the burden of proof. (Eurofaq posting 25/2/01)

THE European Police Office, Europol, is refusing to submit to scrutiny by the European Parliament. It has provided a sanitised version of its annual report, claiming that operational details are confidential. The civil liberties group Statewatch has obtained a leaked version of the full report. It contains nothing that could jeopardise operational security, suggesting that Europol is acquiring a taste for secrecy. Its budget has risen from ?4 million in 1998 to ?17 million in 2000, with 212 staff. Its powers are increasing by leaps and bounds as it evolves from a data centre for drug smuggling to a sort of Euro-FBI; dealing with terrorism, trafficking in immigrants, car theft, child pornography, organised crime, counterfeiting and even "xenophobia". A European Parliament report this year said it could turn into a "repressive monster." (Daily Telegraph 14/4/01)

The Drug Trafficking Offences Act 1986 reversed the burden of proof as regards confiscation of property orders against drug dealers. We were told at the time that this was an exceptional change from the ancient rule and that it would not be allowed to form a precedent. Within two years, the exception was quietly accepted as a new rule; and we are today on the verge of accepting the full American system of civil asset forfeiture - as corrupt and arbitrary a procedure as ever was seen in a civilised country. (S Gabb Libertarian Alliance 9/3/01)

Corpus Juris (the proposed European common system of justice) has been refined. The period of holding a suspect has been shortened from indefinitely to 18 months, as follows: "PREPARATORY STAGE (previously Article 25) Article 25 ­ Definition and duration of the preparatory stage: 1. The preparatory stage of proceedings, opened with regard to the offences defined (Articles 1 to 8), lasts from the initial investigations conducted by the European Public Prosecutor (to whom we are all to be subject) until the closure of such investigations and the decision to commit the case to trial (Article 21(3)). 2. The preparatory stage has a legal duration of no more than six months. The judge of freedoms may, acting on a request from the EPP, decide on an extension for another period of six months. After hearing representations from the parties to the proceedings, the judge determines the length of the extension, taking into account the steps already taken by the EPP and the needs of the investigation. A further extension may be requested and granted according to the same procedure." This means no public hearing and no obligation on the prosecution to exhibit any evidence at all of a case to answer during this time, compared to the English 24/48 hours. (e-mail T Dick-Erikson dated Tue, 09 Apr 2002)

On 28 February the EU Justice and Home Affairs Council reached a provisional agreement on the content of an EU Framework Decision on the freezing of assets and evidence. Based on the "mutual recognition" principle, the measure aims to allow investigating authorities to quickly secure evidence and seize assets in other member states. Effectively, a warrant issued in one member state authorising the freezing of property in relation to criminal investigations into an any of a list of 32 agreed offences and carrying a maximum custodial sentence of three years or more will be enforceable throughout the EU. According to Bob Ainsworth (UK Home Office Minister) the freezing of evidence: "will not depend on there being any particular suspect, indeed the investigation maybe be at an early stage with no particular offence established". Statewatch comments, "Under this proposal one EU state will be able to order another to seize an individual's property or freeze their assets without providing a shred of evidence. The failure to include detailed standards on how affected individuals should be able to challenge these orders is incredible and it is now doubtful if implementation of the legislation will comply with the European Convention on Human Rights." (See: http://www.statewatch.org/news/2002/may/01freezing.htm 20/5/02)

The government proposes to allow judges to sit on juries with ordinary citizens, something hitherto not allowed since all lawyers are ineligible for jury service. The story also shows that the government clearly designed the proposal without having consulted interested parties, who are strongly against it. One therefore wonders why they are proposing it at all, and so stubbornly too? (They have said they will disregard the criticisms of the judges and others, but press ahead anyway.) In France, Italy, and other continental countries, ordinary citizens do take part in deciding verdicts, but not with independent sovereign control over them as in English-speaking countries. Verdicts are usually decided by case-hardened professional career judges sitting alone, but in some, limited cases (very serious crimes indeed), they are decided by a mixed panel of ordinary citizens sitting together with perhaps one or two professional judges. In theory they each have an equal vote, but they must decide points of fact and points of law, jumbled together, and since the professionals obviously have an edge over the lay jurors on the points of law, it ends up that the professionals nearly always run the meeting in the jury-room and influence the outcome very heavily indeed, also as regards the points of fact i.e. guilty or not guilty. Many Italian lawyers I know agree that the function of the lay participants is in fact purely decorative, since it is the professionals in the jury-room who inevitably steer the amateurs towards the verdict that they have decided is right. We, the English speaking peoples of the world, have always been against this. It is like saying that an ordinary citizen is incapable of deciding which party will make a better government, and so must be accompanied into the voting booth by an expert in politics, who will help him to decide how best to vote. We believe that depriving a person of his or her liberty is such a serious matter that it cannot be decided in any way by a servant of the state, who all too easily will have some axe to grind. It must be left up to a jury of the defendant's peers to decide without any outside interference. Now is it just a mere coincidence (another one!) that judges do sit with ordinary "jury people" on the continent, and now Blair and Blunkett are proposing the same thing here? Or is it that the British government is in fact working to an agenda set in Brussels, and is consciously refashioning our system of justice so that it will be more like the continental model? Hacking away at our safeguards against unfair convictions, so that we will fit more easily into Europe's iron maiden? (Sunday Telegraph/T Dick-Erickson 4/8/02)

PLANS to abolish the ancient principle of double jeopardy were unexpectedly widened yesterday when the Government published its legislation to overhaul the criminal justice system. People accused of up to 30 serious offences - from murder and manslaughter to serious drug trafficking - could face a retrial if compelling new evidence is brought against them. The range of crimes covered was greater than anticipated. They will also include attempted murder, rape, arson, Will' crimes, armed robbery, conspiracy and wounding with intent. The 800-year-old prohibition on defendants facing another trial for the same offence after being acquitted will be removed retrospectively by the Criminal Justice Bill. It will also restrict trial by jury in certain circumstances, including complex fraud cases and where intimidation is a risk. Violent offenders will face indeterminate sentences and a range of new custodial and community penalties will be introduced. Release will be at the discretion of the Parole Board. It will allow trial without jury where the defendant has requested it, including complex financial cases and where there is a serious risk of jury intimidation. Juries will be able to hear evidence of previous convictions and "relevant" bad character before reaching a verdict. Hearsay evidence is also to be admissible "where it would not be contrary to the interests of justice." The Bill also contains an array of new sentencing powers. Magistrates will be able to send someone to prison for a year rather than six months as now. Police will also get new powers and will be able to hold a suspect without charge for 36 hours instead of 24 hours. John Wadham, director of Liberty, the civil liberties group, called the Bill a "shameful attack on justice" that would be regretted in years to come. " (Daily Telegraph London 22/10/02)

Britons face languishing in foreign jails under controversial new euro arrest warrants, civil rights groups have warned. They slammed the lack of bail measures for the warrants, which came into force yesterday. People in the UK can now be arrested and extradited on the orders of foreign courts. They could also be charged with offences such as xenophobia which are not crimes here. Stephen Jakobi, of lobby group Fair Trials Abroad, warned the new law had been rushed through and was flawed. He said: "There will be an enormous increase in the number of foreigners sitting in prison awaiting trial. Some needs, such as adequate interpretation and translation, will take years to arrange. "But the most urgent need is for a European-wide bail system." (The Sun 2nd January 2004)