 My being asked to speak and my pleasure to face so many old friends. ByTech we're fraught to be here as far as sells is concerned, because I only played a small role, despite some of the kind of things that was said this morning, I've really been a caretaker two and dyn nhw'n ffordd. Rwy'n ddechrau arall i Alun a'r ffordd John, ac rwy'n ddechrau ar ymddangos i Catherine. Rwy'n dweud i'r wneud y gyrs, y 2008-2009, rwy'n dweud i'r 1213, ac yn ymddangos arall. ac yn ystod, mae'n rhaid i'w ddiddordeb yn ymgyrch ar y cyfnod yng nghymru, yr anandas, y dyfodol, ac mae'n ffordd yn ymddangos ar y cyfnod, gyda'r seminas, yr eirbwch, yr anodol a'r rhagleniaeth, ac so forth. Fy ffwrdd, mae'n rhaid i'r cyfnod, mae'n rhaid i'r anodol yn ymgyrchol, Ac, ac mae'n gynch ar gyd yn y pethau i chi'n ddefnyddio, dwi'n gwybod aethaf aethaf, o adreun, môl, chefnol, i'n ysgriffynol Brytysgwm, o amlwg hwn i chi'n gwneud, gydag ychydig oherwydd yn gweithio'r rhaglau, yn gweithio'n Gathryn, o ran ysgrifoedd Cymru, ac nid oes i chi'n gwybod i chi i chi'n gynghreun o'r gweithio'r teulu o'r ysgrifffydd. I know one of the things, we arranged the accommodation for them, and one of the things that we asked all the people who were going to do was to fill in a form which they said who they'd like to share a room with. Diane Abraham, I think it was, said to me, we've got a problem here. Mr X has filled in a form to say he'd like to share a room with Ms Y. Ms Y doesn't know anything about it. We booked the Eurostar travel both ways, but we found coming back, I think it was, we booked on the wrong day. But Christophe Villan was the deputy director, and he was on the trip, and he's a Breton. Unfortunately the person in the Eurostar office in Paris or Brussels, I thought, which now must have been Brussels, was also a Breton, and Bretons get on well, so it was able to sort it out. My slant for sales, and so far as I put any on it, was the EU and criminal law, and that was really because of my total ignorance about any other part of EU law, to be honest. Running sales, it made me think of some line from Yes Minister, where some civil servants said, of course I didn't read economics at university. I wouldn't be head of the economic division if I had. Of course I went to, through the law school before the UK had joined the EU, and when there wasn't any in the syllabus, and I just picked it up bits and pieces since. And my way into the EU and criminal law was thanks to being recruited to work on a project to do with Eurofraud, which produced what got known as the Corpus Eurus project, proposing a European public prosecutor. I only got recruited to that because I was an English criminal lawyer, and you were about English criminal law and criminal procedure and criminal evidence, because I could work in French and all the meetings were in French. And I had my share of meetings in excruciating rooms with noisy air conditioning with everybody trying to talk French as a second language. The Italian not having done what he was supposed to do and voluble explaining why he hadn't and people having to arrive late and people going early, astonishes me, we got anything done at all, but we did. And I'll mention more about the Corpus Eurus project in a minute. And thinking back to the things we did in cells, I'd just like to mention one which I think was really quite important at least for a time. I was contacted by Lord Justice Thomas as he then was, somebody I'd known for a long time, and he said, I'm very concerned about the fact that the UK doesn't seem to have any coordinated approach to the EU criminal law, which is a growing field. As far as I can see, different government departments deal individually with different aspects of it. Nobody seems to have any direction. And it would be very helpful if we could have some kind of interchange, not only between academics and the civil servants involved, but also between the different civil servants involved, any idea. And through cells we set up a meeting. It took place in the diamond at Selwyn. And we had academic lawyers who were interested in criminal law and people from the civil service would be not aware of one another's existence. It happened to have the brief to deal with the EU aspect of something, EU criminal law aspect of something they were dealing with. And they all exchanged telephone numbers and Lord Justice Thomas was there, of course, maybe other people from the judiciary as well. And thereafter there was the John Thomas group, which met for a number of years when there was a kind of show and tell periodically in the world courts of justice when the civil servants involved in doing it all got together and people from the judiciary and academics. And it was all very helpful. And it was all fine until the shutters came down under the coalition and civil servants weren't allowed to talk to anybody about all this because it was politically sensitive and it all very sadly fizzled out. Well, that's a bit about how I got into cells and a bit about how I got into the EU criminal law. The Corpus Urus project, interesting linguistically, just a sideline, I got recruited just because I could work in French. And the person who was driving the project was Mérée de Nassmartie, eminent French lawyer, so it was all in French. And there were several iterations of this project. The next one she'd been in Cambridge for a bit and she'd mastered oral French and she said it can be in French or English. And the next iteration of it, people did use French or English as they chose. And then the third iteration of it was when we had what were then the candidate countries involved and officially it was French or English. But the candidate countries were the exception of the Poles where there was an elderly Polish lady who much preferred French to English. It was all in English and then finally a later iteration of it. It was all in English and that was the gradual shift. And is that how it's going to be after Brexit? I don't know. Well anyway, I was asked to talk about Europe and criminal justice and that's what I'm now going to talk about. Though it will have periodic references back to cells and things that happened here. I'm going to talk about why EU criminal law, what is EU criminal law, what was the UK's part in the development of the matter and lastly and forcefully what's going to be the UK's relationship with EU and criminal law in the future. And I'm aware that in this expert body a lot of you will know already better than I do quite a bit of what I'm going to say and please excuse me for the points where I'm just telling you things you know extremely well. The UK and European criminal justice, two views, has the same view and the not quite the same view. The not quite so same view on EU criminal justice is one of the Euro myths. You know about Euro myths, I mentioned one this morning about the floods and of course of the floods and the excellent Euro myth website which Catherine tipped me off about and I look at occasionally when I want some black humour and here are some things that have appeared on it over the years, really did. EU is about to ban corgi dogs, the favourite pet of Her Majesty the Queen of course. They're about to ban double decker buses, the public symbol of London. Did you know that? Under EU law it's illegal to bury dead pets unless you've pressure cooked them first. I mean this really has appeared in our press without correction of course. The EU is going to ban Barrister's wigs and particularly relevant to President's discussions. Brussels has a secret plan to abolish the common law and make us have the Napoleonic system. You might think that's too stupid even to mention but it's one of those things that recurs again and again in the press and it certainly appeared big time as one of the arguments why we had to leave the EU. Here are two front pages from the daily express during that period. Exclusive Brussels plot to impose Euro law after EU referendum, a threat to our freedom. EU power grab terrifying Brussels plot to replace our police and judges with Euro studies etc etc. The Corpus-Eurus project was a reaction to the problem of dealing with fraud on EU finances which at the time was investigated by a body that's known as OLAP which is an EU anti-fraud agency as part of the investigation but when it's investigated all it can do is hand the dossier over to the public prosecutor of the relevant member state if they can work out which one or what it is and all two typically unfortunately then that results in a game of not pass the parcel when you hope that music is going to stop in front of you so you unwrap it and get the parcel but pass the bomb when you pass it on as quickly as possible nobody really wanted to know and our group was charged with trying to think up a solution which might work if there was a political will to do it and we thought up the idea of a European public prosecutor with authority to prosecute for Euro fraud operating under a set of rules relating to Euro fraud which should apply throughout all member states and for the purpose of prosecuting them having some common rules of procedure all very sensible we thought but it got reduced in the British press leading with the daily telegraph as this being the Brussels plot to overthrow the common law looking back it was at the period when Boris Johnson was their correspondent at Brussels and started to telegraph down the route of getting incredibly inaccurate stories about the EU in the telegraph which is supposed to be a suitable paper and just try to see what comes up if you start googling Corpus Eurus EU Corpus Eurus the nightmare begins Corpus Eurus corrupt justice blah blah blah blah my favourite one of all that one well that's the popular conception of what EU criminal laws are all about and I'm afraid it was one of the things which wasn't corrected during the build up to the referendum and did damage what's it really about why is there any EU criminal law well you know all about the four freedoms don't you freedom of movement of workers of services of goods in a capital and unfortunately it leads to a fifth freedom free movement of criminals and crime and unfortunate necessary consequence to make the most obvious thing much easier transborder travel means it's much easier for somebody to commit a crime in country one and skip across the border to country two than it used to be slightly less obviously it's much easier for people across the borders to commit transborder crimes even less obviously it sometimes gives rise to new forms of criminality which you previously didn't have fraud on the EU finances obviously the EU depends on raising money through taxes and then it dishes it out in some cities mainly contrary to the popular view which is it just disappears into a sort of black hole in Brussels and it's spent by officials having a corrupt lifestyle and you can make yourself rich by either not paying what you should in or by getting out what you shouldn't have or if you're really clever managing to do both at once and the growth of EU criminal law has been a reaction to that trying to find more efficient ways of dealing with crime which tends to be much more transborder in a body where borders matter less and what does it consist of what is EU criminal law well it might sound like something like a federal code in the US something above the national ones but it isn't yet and may never become so it's a body of law about a number of different things agencies set up to try and coordinate activities Europol for example Eurojust which is a public prosecutor's version of Europol neither have any powers to prosecute anybody nor to investigate but they are an information store and so on OLAP which I mentioned which investigates the youth frauds agencies of that sort secondly it's a body of EU instruments designed to facilitate cooperation between police forces and the investigation of crimes just to give you one example out of many joint investigation teams they can operate under the benefit of an EU instrument under which a joint team can be set up which then means that the police officers from the different countries can operate with authority within other countries which might by their national rules only allow their own national police officers to investigate and take actions and so on a lot of these police cooperation measures and about information sharing between police a lot of them too thirdly a body of legal instruments about mutual recognition handed of course by the one everybody knows about the European arrest warrant which is a system of quick and simplified extradition as between the member states traditionally extradition between one country and another was a matter of asking for a favour that was granted in the discretion of the other side please could you possibly help us we would like so and so back when you've got time and if you feel like it and provided it doesn't come to mean this and this and this national rule could you just help us get him back please and the other country would say well maybe we'll look about it and it would ultimately be a political decision and maybe the person would be politically protected in some way and he wouldn't be handed over and all that changed almost automatic recognition of extradition requests from legal authorities between member states and it's the first of a list of mutual recognition measures under which rules and orders of the criminal jurisdiction to criminal authorities in different member states can be more or less automatically enforced in the others a system which had basically been going in civil justice of course per years before but it was something new and striking when it started to happen in criminal justice then harmonising criminal law a group of EU instruments attempting to produce a common approach to particular issues in particular social institutions which need this criminal law to do with them people trafficking, people smuggling, bribery and that sort of thing EU instruments on all of these trying to introduce a common standard usually rather vaguely drafted and the main thing they contain is every member state must make it a criminal offence punishable with at least a maximum penalty of so much a minimum maximum penalty that everybody must have not a minimum penalty for everybody, everybody must make it serious enough that it could be punished with X and people complain about the possible influence, oh dear we've been Europeanised by this but in fact the UK has done quite a lot of exporting you look at any of these instruments you'll find standard in it is there must be criminal liability of legal persons that's something that grew up in the common law world was unknown or thought to be contrary to principle in a lot of continental Europe its flavour of the month with the EU and all these instruments have required member states not liking it very much some of them to introduce criminal liability of legal persons that it seems which are in the list and lastly the group of measures harmonising aspects of criminal procedure starting with decent treatment for victims of crimes through all member states and then moving on to attempts to guarantee certain minimum rights for defendants in criminal justice particularly affecting people who would be tried in the courts of something other than their home country for things like minimal right to interpreters and so forth to try to you might think it was a good thing just to have that anyway but the reason for having it was always put forward as look to make mutual recognition work to make sure member states really do what they say and send people back for trial in the other member state they have to have confidence they're going to get a decent deal when they get there so the EU must do its best to raise standards appropriately through the different legal systems in the other member states and that's what EU law currently consists of bodies of legal rules about those 1, 2, 3, 4, 5 different things where does the law come from? Well I expect you know better than I do it all started with Schengen Schengen getting rid of border posts no stopping people on borders very much easier movement of temples across borders part of the Schengen package was enhanced police cooperation to deal with it and a repressive package is built into Schengen to try to compensate for the extra free movement of criminals that was going to result that's the first gobit of EU criminal law then secondly under Maastricht and the third pillar there were, it was created the possibility for the EU old form to create instruments affecting criminal justice to have to be given effect to all member states within limits a very weak and bland menu in 1992 but made to contain something that was much more important in 1997 namely the framework decision a bit like a directive but in the EU area under which member states were required to carry out this and that and the other rather than being able to decide if they actually felt like it What was the EU's role in all of this? Well basically the big push forward in EU criminal law corresponded with the Blair years to go back to something I should have mentioned before a new legal framework for the creation of EU criminal law with the process community rise and the Lisbon which is where we are now but yes, what I meant to be the UK's involvement during the Blair years corresponded with EU criminal law really getting going and the Blair government was pro-Europeans and also very pro law and order You may remember Tony Blair managed to win the 1997 election party by playing down the Labour party's traditional position on criminal justice which was its social deprivation causes people to commit crimes we were to prove social conditions and crimes would fall away you must be hard on them to satirise the traditional government position Tony Blair discovered that that was taking votes away so he invented that slogan when he was shadowing sectific new labour, tough on crime and on the causes of crime and they were very authoritarian in the sort of things they pushed forward during that period and they were really in there in pushing forward for new measures post Amsterdam the UK was in the forefront of the European arrest warrant for example and the other mutual recognition measures and the police cooperation measures and something else, I bet somebody who didn't know this Schengen, you know we're not part of Schengen as you curse every time you have to queue up at the airport and so on well we're not in the free movement part but under Blair we discovered there was some nice repressive bits so the Blair government went to the EU and said look could we come into the repressive bits please we're not impending our borders but coming into the repressive bits and they let us into the repressive bits so the UK got into the repressive bits of Schengen under the Blair government there were some things they didn't like they didn't like the European public prosecutor proposal when that was first floated in 1997 but nor did any other member state then and so the UK wasn't able to step over that towards the end of the Blair years I regret to say the UK put a spanner in the works to stop the development of any more defence favourable harmonisations of criminal justice we were in there to begin with and all of a sudden we changed our mind and we went cold on it and we used our political muscle to stop the being any more of it and of course unanimity was then required so we spranged it by doing that why nobody ever explained but I'm pretty sure it was that we had a very populist programme of reform of criminal justice put victims at the top etc and it was a move even to try to reduce defendants rights of appeal in criminal cases and they didn't want all that to be denuded with a headline saying Brussels gives criminals more rights or anything like that and then at the end of the labour period after Tony Blair had gone and it was a question of signing up to Lisbon we extracted two big opt-outs from criminal justice under the new arrangement I'll tell you more about them in a minute why did we extract them certainly for national political reasons the Labour Party promised a referendum on the EU constitution when it won the election in 2005 and it then seen that referendum going the wrong way in different other countries in Europe it absolutely didn't want to have one on the Lisbon Treaty but it went the wrong way in the UK so Gordon Brown had to be able to dress it up for internal purposes as not changing anything and the two things it really would have changed was the position in criminal justice so we had to have opt-outs to try and keep that the same but apart from that if you want to sum up the UK's part in developing EU criminal law during the Labour years it's that forward with Europe in repression basically but then from 2010 to 2015 we had the coalition years and well there you are one of those and you had the Conservatives with increasing plight in the Eurosceptic wing of it not wanted to cooperate with anything in Europe you had Theresa May who was Home Secretary who wanted to go on cooperating on the repressive stuff and the Lib Dems who were up for all of it the result was we had a very muddled period of years in reacting to EU criminal law policy initiatives to start with basically we started being favourable to them and we ended up refusing to have anything more to do with any of them at the end of the coalition period I'm going to tell you about the Protocol 36 fiasco and the lead up to it some of you will know already a lot about this under Maastricht the measures that were adopted had to be adopted by unanimity criminal justice measures had to be adopted by unanimity the member states which made every country could veto one national veto on any measure and there was no enforcement through the courts so you had a framework decision under which the member states were required to carry it out but nothing could be done legally against them if they just didn't it all depended on informal pressures being applied to them in that sort of way by the other member states and in the Lisbon Treaty we extracted two opt-outs one was in protocol 21 no EU justice measures applied to us unless we decided to opt into them so that was to maintain the position we had before with a national veto basically and secondly we were worried or purported to be worried about the fact that under the Lisbon Treaty the EU court of justice was going to require full jurisdiction over the criminal area not only for future measures but also in respect of the Maastricht measures from a date mentioned and with that in mind in protocol 36 article 10 clause 4 we got the right to pull out of all the surviving Maastricht measures ahead of the CJEU getting power to implement power to enforce them and that was just simply meant to make the Lisbon Treaty palatable without a referendum all the absence of a referendum palatable but it got discovered by the Tory Eurosceptics who not the brightest of people thought that it was somehow the means of disconnecting the UK from the EU in criminal law matters and that was all taken up by the sun and taken up by the daily telegraph and there was pressure on David Cameron to exercise the protocol 36 opt-out and in September 2012 at a trade conference in Brazil he was asked by a journalist what are you going to do about that opt-out on criminal justice and he said oh we're going to do it, we're going to do it by the end of the year don't worry, gasp and of course having said it they pledged and they had to I like this slide I've read it a number of times this was a headline from the sun or something else David Cameron's knack for speaking without engaging his brain is a nasty habit well he sure did it on that occasion bigger mistake was led to follow and so we did exercise the protocol 36 opt-out and the final end of it all was that we opted out of all the measures, all item all of it and we opted back into all the measures that actually mattered including all the ones that the Europe's get a particular disliked named in the european arrest warrant and we just ditched the ones that didn't make any difference value of the exercise were derisively Yvette Cooper in Parliament in the debate when Cameron said we've clawed back all these powers for Brussels said that we now have the power not to do a whole series of things we plan to go harry on doing anyway the power not to follow guidance we already follow the power not to take action we already take the power not to meet standards we already meet the power not to do things that everyone else has stopped doing already and the power not to do a whole series of things we want to do anyway there you are I and others Alithia Henryasios who is sadly not here today and Steve Pears wrote an analysis of what the master's criminal law was what we lose that we opted out and cells helped us do it and helped us publish it and that's another of my involvement with cells and I'm very grateful for the cells' support so what's the UK's current position following the protocol 36 fiasco well we're in the new agencies that were created for the moment not in the European public prosecutor we said we weren't going to have anything to do with that I can tell you more about that different questions if anybody wants to know we opted back into all the police cooperation measures we opted back into all the mutual recognition measures basically we opted out of all the master's strict harmonising criminal law measures except for child porn so the UK is now free to legalise bribery and terrorism and all these other things the tourists are so keen on legalising and we're in some of the criminal law some of the criminal procedure bits like victims in about one of the defence right ones but we're basically out of it so we're sort of part way in part way out at the moment much more in than out what's going to be the position in the future after Brexit assuming Brexit happens as I think we must must assume well we don't really know very clearly what the government's going to seek to negotiate but in February Theresa May calls the government to publish a white paper saying what she hoped we were going to get and we will continue to work with the EU to preserve UK and European security and to fight terrorism and uphold justice across Europe she said the safety of the UK public is the top priority for the government our pre-existing security relationship with the EU and its member states that we are uniquely placed to develop and sustain a mutually beneficial model of cooperation in this area from outside the union we've been such good boys in all of this in the past they don't understand it they just have anything well there you are I spoke with somebody I know in one of the ministers of justice in one of the member states he said I read that and my blood boiled you've been really awkward people to deal with our criminal justice you wanted exceptions of anything you've turned us inside out over the protocol 36 fiasco which all amounted to nothing in the end we've made endless concessions to you to keep you on side well now you're going out don't expect any concessions on anything we will be giving you a deal but it's one that benefits us not you and I suspect that the I suspect that's going to be the decision of the 27 member states we will be able to do some kind of deal on EU criminal law insofar as it's perceived to be of benefit to the rest of the EU but not otherwise we know what Theresa May wants to keep the repressive packages basically how much of EU criminal law could we actually keep and how post Brexit membership of EU agencies we could well things like Eurojust and Europol do allow desks rather poor quality desks in a corner to be occupied by associate members from other countries like the Ukraine and the US and so on and I think we could expect to be given one of those but the difference is that it's only the actual members of the college of Europol which are the representatives of the member states who's again to decide what goes on who is the current director of Europol answer a great Robert Wainwright who's been doing it for years and has managed to mold it all our way considerably ditto with Eurojust we've actually had two directors of Eurojust we won't have any more will we you'll have a desk in a corner and to quote the remainder slogan turning it round it's the EU which will take back control on police cooperation measures of mutual recognition I think I can do with them well we will have to make deals either with the EU collectively or with the individual member states with the individual member states if you add up all the measures that the camera and government wanted to go back into and you multiply them by 27 I think it comes with something like 794 different instruments that we did individually so we'll have to try and get some kind of collective deal and it's quite possible optimist's point to the council decision on the mutual of the European arrest warrant to Norway and Iceland under which they are bound by the court of justice decisions where they agree to listen to them with respect we could do that couldn't we that decision was made in I think 2006 and it's still not in force because it had to be ratified by all the member states and some of them haven't now it's possible that the other member states would give a greater priority to the UK as being a more likely destination for their criminals to run after them than Iceland I mean I guess if it's Iceland I might think well what does it matter if he has to spend the rest of his life in Iceland serves him right doesn't he but the UK it might be another matter so we might be able to get some special deals but I see difficulties Theresa May before the 2015 election was all up for ditching the European Convention on Human Rights and the draft that explains you'd love to get rid of it and the Torah your skeptics would love it so you may well find that we're told we can stay in those measures as long as we guarantee to stay in the European Convention and so on and so on so something could be done probably there are other international conventions there are European Council of Europe conventions in some of these areas which we could fall back on if we don't get any special deals or the EU Council of Europe makes tradition convention which is what we operate with countries like Norway so on at the moment but they're nothing like as good for example contracting parties under those can refuse to hand over their nationals and that's a real bind as I was saying in international criminal law we can either hand them over or try them ourselves so the countries which like exercise that rule and say okay Metropolitan Police will try our German for rape but we've got to do it here so send a victim over and all the evidence and everything will be possibly here and of course very very difficult to do harmonising criminal law will be opted out of nearly all those measures and we're likely not to want to go back into them we don't most of these measures say we must punish at least this with at least this severity if you look at English substantive criminal law compared with a criminal law anywhere else in continental Europe it punishes more things and it has higher maximum penalties with a high penalty champions of Europe so it won't change anything and anyway we are bound by other international treaties to prohibit most of the things that these prohibit harmonising criminal procedure heaven knows we'll probably try not to go back into any of these in any way but we might well find that we have to as the price of doing the deals that we'd like to do on the police cooperation and mutual recognition something will come out a bit but it will be on terms of mutual interest with the rest of the EU rather than their desire actually to keep us on side I'm sure well thank you for your attention ladies and gentlemen and it's now time for the discussion question, reactions, comments so I'd like to open the floor to those it's a kind of question that cuts across both and I think what was interesting in both presentations was the discussion of the response of the language and the way in which English suddenly became to dominate as the name language of discussion for all those reasons now in the context then of the UK leaving many of these institutions how do you think the language dimension of some of these issues is going to change is it one thing that is going to be the legacy that English language remains the language of discussion in these different forums or discussion or is there going to be a language takeover I don't know maybe Angela who is at the court might be able to tell us in practical terms English is the new Latin and it's the transport language or something for a great many people who can talk enough of it to communicate with one another even though their native tongues are finished Danish or whatever it is I suppose the English language will remain one of the official languages of the EU because there are other countries where it's ailed the official language even though the UK is not a member my guess is that it will continue to exercise a strong influence just because there are so many people who will be participating in the enterprise who are much easier in it than in French which would be the alternative or maybe even German I don't know I can see as far into a crystal ball it's probably well it's not English English it's the as you say the English spoken by the fin to a dain in the airport lounge and that changes the sort of vocabulary and the terminology it will develop a kind of it is already developing the internet and whatever an autonomous character I think for comparative lawyers that's going to it's one thing to have it as a language of discussion a reference point as a sort of neutral Esperanto type of language but it still doesn't get you away from the problem of you can't it's very difficult to do the contextual stuff unless you can actually dig down into that local language and that I think is going to be the big issue in a sense the more you expand the range of countries that you want to compare the bigger your problem and the bigger the teams that you need to put in place to enable so I think it and to some extent as I said in my presentation the deficiencies in particularly the English education system on modern languages is actually going to put a lot of English people at severe disadvantage just to the discount or something like that at the beginning English in the EU form there are certain usages of words and to us misuses of words which I have noticed with current in documents in the EU particularly one that comes to mind we want to say in English this law requires this law to be done this law lays down the system to say this law provides such and such if you read an EU document it will say this law foresees this law in the other now that's a translation of Prévoire in French I suppose both meanings but that's going to be strange version of English there's a great list of common mistakes I think the library of the court put it out last year pointing out where the Euro English version is different from British English John I have a question for you on assuming the UK crashes out in March 2019 and then the new Johnson administration tries to rapidly renegotiate some form of arrangement or maybe even tries to re-enter can you see a situation where the other member states will say you had one fantastic ride of exceptions if you want to be part of this again you will have to accept the whole body a key in EU criminal law before we move forward with you yes I can everything as I said the game is there is mutual interest the Germans are going to want to get their cripples back from us they are going to want to get evidence in this country to prosecute their evil doers in Germany and so on and so forth so there may be some concession given in order to avoid the UK becoming the Brazil of Europe which would not be happy for the rest of the EU unless happened for us of course of course we are not the only country which has had strait relationships with the EU criminal justice and Denmark voted to leave Europe on this so at least we are not alone I was going to make a few thoughts in response to John Bell's really great paper I think in your previous work you described comparative law as a normative social science and the way that seems right in the sense that the analytical work which is being done is syncretic in the sense it is both trying to kind of explain almost empirically but I don't know any in a strong sense to introduce this on this but in a sense empirically why we see different patterns in different jurisdictions and then it has this normative angle which is trying to look at actually functionally but in a sense the descriptive analytical is the easier one and fits very much with the more the better and the more the better and the more the better I suppose my question would be how you see that balance or that synthesis going forward in discipline I mean in a sense the descriptive analytical with sociology, physical science and so on but there is that other bit of legal science generally and I just remember in a comparative methodology conference a psychologist saying well isn't all that lawyers do to analyse or predict what's in the mind of judges what judges think or might do so rather than law as what people ought to do if law is about what people ought to do comparative law shares that question that law lawyers have about what is the right thing to do so it's answering a common question among other branches of law with the evidence provided by looking at a problem from different angles and coming up to a judgement but that judgement is based on I'm going to go philosophical a lot of things about which we standards about which we have to be clear and I think comparative lawyers quite often fight shy of that bit and that is why probably too much comparative law remains at the descriptive level because it's easy in one sense to put it together in an explanatory form and then say okay what do we do about it not my job and I think the normative side is when we contribute to a debate but that's that point we have only limited standing because other people have got other normative perspectives that challenge it our evidence base is one part of the jigsaw so that's I think where the collaboration comes as part of a team of people with different expertise we don't need all the members of the team to have knowledge of the particular legal systems they need to be able to read the results and then come to a debate Can I think on that I mean you have been a member of a network of European Supreme Court judges do you see them actually doing compatible using it and shooting it? I think they do I mean that's why I was saying a lot of the stuff upstream of the European Convention probably the most interesting debate was in the Strasbourg Court when you've got Supreme Court judges from Italy, France, Germany Strasbourg, Luxembourg others sitting round the table with the registrar of the court and talking off the record about some of the problems they had one of the problems which they had one of the court judges had subsequently became a Strasbourg case and that you already got the sense of dealing with a problem what's the best way of handling it taking it counter all the different standards I mean just to sort of come back a little bit on the script what you're calling descriptive it seems the good comparative world often goes rather deeper than simply descriptive on the non-normative side because you need to understand how deep or shallow the differences are in terms of what's practically possible for cooperation and organisation if in fact the differences are skin deep then in fact a lot more is possible in terms of more formal suggestions if in fact it's deeply entrenched for example in national people cultures then it's not what's possible but that is quite analytically it's not a simple description and I think we are seeing some of that kind of work in comparative world I think you're right about the context but the context too often requires you to work with people who are not lawyers to get to the grips with what if we take John Zones area it's a very good area to look at because the criminal justice system involves a lot of institutions a lot of practices and so on and the work that John's team is able to do is not just look at rules but just to understand why it takes the time is to understand how does the system work and what's going on and where does the problem crop up where the difficulties and they may crop up in all sorts of different ways I don't know whether you wanted to comment on that John because your area is a very good area for that something of great interest is how apparently very broad the area of liability is in English criminal law for preliminary acts before crimes for example and conspiracy and as well as definitions of actual offences themselves it's a detect very, very well defined and how very narrow a lot of the defences are youth is to accept the defences of necessity in cases of euthanacy for example and the other side of that is we have a discretion to prosecute hugely used and we have jewellery equity which is regarded as a good value and those people rather than an abuse under which jewellies could just rebel and then quit and get in the teeth of the door the only reason I'm quite sure we've never performed our law relating to massive getting is the knowledge that jewellies would perversely acquit and in consequence the director of public prosecutions either doesn't prosecute at all or accept the guilty people to manslaughter in the knowledge of the court would give some a leading sentence you can't really understand you've got to do this criminal law on paper this is horrendous that you've taken to account the institutions that surround it and it works out in a relatively stabilised sometimes not like that so that's what you see and whereas Italian law has an obligation to prosecute yes and it works like this it also has a time limit because of the time limits that public prosecutor exercises is a discretion by where he puts the dossier he can use all those piles on his desk so he lets them quietly die if he wants to and it works the same way really but it's those sort of contextual features of looking at criminal law with criminal procedure and criminal process that enables you to have a feel for how the system works and I think too much of the old traditional world congress sort of stuff looks at the rules and doesn't really get you to a situation where you can seriously make a question about whether it's a good thing or a bad thing that's that rule or not and you want to do another question? we have a few minutes if there's no else I'll just make a brief remark about the language issue before I pose a short question an interesting thought across my radar recently was that there would now be more English in the EU once the Brexit goes through than less because there's an obvious political sensitivity around any big language dominating the system so if you have a big language but the brunt of the country isn't a member and that takes the heat out of the political sensitivity so ironically you might see more English used in the institutions after the Brexit than before as far as the court is concerned the court will never change for French I can't see that happening then in terms of the question I wanted to ask I was at a conference just last week about the new EU data protection regulation a police officer gave a very interesting presentation and he spoke in favour of the exceptions to data protection and the regulation being interpreted broadly because there are so many crimes now that are committed purely on the internet and that in order to collect evidence than the exceptions to data protection and his view needed to be interpreted broadly John, in all these in all of your involvement in the whole process here in the UK both before and after Brexit has there been any focus at all on this contemporary problem we have now on the internet and crimes being committed across borders probably more commonly now than ever before because of the use of technology and how this is affecting the UK's relationship with Europe is that featured as part of the discussion? I'm out of my depth so I won't waffle too long or to start someone said I'd like permission to obfuscate the EU harmonisation of criminal instruments typically deal with offences and transport elements and they typically deal with them by requiring the member states to make jurisdiction rules that enable them to exercise extra-territorial jurisdiction so make sure that they can trust the court of this country can trust few people for even though it happened in Italy or even though the person says it was really down in Italy trying to get around it that way trouble is though as one of the writers on all this said potentially results in a sort of member state starts first is the one that ends up dealing with it and sometimes they're not the most appropriate one to do it for that reason that years ago we thought what you needed was a European public prosecutor to deal with prosecutions for frauds on the EU finances which are very often transferred but probably that's what's needed but as far as I can answer your question actually the way we've been trying to deal with it at the moment is by harmonisation measures in there all in the states must make rules so that they can punish people for doing it even outside their borders that's as far as we've got I think I don't know where the day we can let us in I mean there are several days protection rights in the room but I think you know that there is a concern that I suspect that there is an opportunity inside the Watson case which is actually ruled by Dave Davis that I'm trying to prompt him to remove himself from the case as a joint case where data attention laws at national level were declared invalid and apparently the reasoning of the court was that the indebted and sort of general attention of the population of capital data even to buy serious crime and terrorism was unacceptable because it was a violation of fundamental right and making attention all the data had to be stored in the EU because there's no place and yeah this is a concern in fact this does threaten the fight against serious crime and terrorism it is an EU measure and it's coming from the court and it's coming from made protection legislation and fundamental rights jurisprudence does that in terms of a strange result I do worry that the court and some of the people who made this decision might not have the expertise to understand the indication that they're saying indebted attention is unacceptable of all thought and I think that the members are trying to find a way around what they often do if you read the word which says that even to the fight against serious crime and terrorism I think it's time to stop this session and perhaps to continue that discussion around the coffee thank you very much to both our speakers I think John and I left was talking about contextualising our understanding of the rules and John and I were doing exactly that and there's a lot of discussion about the rules and I think it's time to stop this session and perhaps to continue that discussion around the coffee and thank you very much for your analysis so that was great thank you very much