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Book reviews

14 April 14

Reviews of Parent and Child (Norrie); key texts in EU criminal law

by Wendy Sheehan, David J Dickson (review editor)

Parent and Child

3rd edition

Kenneth McK Norrie

PUBLISHER: W GREEN (SCOTTISH UNIVERSITIES LAW INSTITUTE)

ISBN: 9780414018105

PRICE: £155

There have been (as the author identifies in the preface) profound societal changes in the understanding of family life during the 14 years since the second edition of this invaluable practitioner bible. The law of parent and child has changed and developed through primary legislation including the Civil Partnership Act 2004, the Family Law (Scotland) Act 2006 and the Adoption and Children (Scotland) Act 2007.

Professor Norrie’s work is the “go to” reference book, as it comprehensively covers all aspects of private and public law in this field.

Chapters 8 and 9 should be prescribed reading for all family lawyers before embarking on an application for s 11 orders, and should be firmly embedded in their DNA when advising clients and appearing in the family courts.

The European dimension casts a shadow over many family cases. Professor Norrie covers the complex jurisdiction issues, including Brussels II-bis and the maintenance regulation. The minefield of child support is covered by Scotland’s leading expert, John Fotheringham, in chapter 11. The remaining chapters comprehensively cover all public law aspects including the Children’s Hearings (Scotland) Act 2011, permanence orders and adoption.

This should sit on the bookshelf of every family lawyer. My copy already has post-it notes flagging many pages, and a sticker on the front which reads: “Personal copy – do not remove”.

Sheriff Wendy Sheehan
 

Key texts on EU criminal law

The book review editor offers a roundup of selected key texts

The decision of the UK Government to exercise the opt-out of Justice and Home Affairs instruments under the Lisbon Treaty, while perhaps not yet a seismic movement, at least raises issues of concern over cross-border co-operation in relation to the investigation and prosecution of cross-border crime. There have been a number of significant texts which consider the various instruments and current framework of operation of EU law in UK legal practice.

Towards a Prosecutor for the European Union

(ed) Katalin Ligeti

PUBLISHER: HART PUBLISHING

PRICE: £110; Adobe PDF and e-book £99

ISBN: 9781849463140

In the late 1990s the EU Commission began discussion of a corpus juris aimed to tackle fraud on the EU budget. That measure did not survive and has been recently reincarnated with the proposal for the creation of the European Public Prosecutor's Office (EPPO).

As Katalin Ligeti, the lead academic on the review group, observes in her foreword, the driver for the measure is the achievement of significant success, in practice, of the principle of mutual recognition. Now a cornerstone of EU criminal justice policy and instruments, the principle sees the horizontal application of cross-border measures into national law, thereby removing the need for harmonisation of law and procedure.

The results of the review group of EU criminal academics which conducted preliminary research of national law in relation to the investigation and prosecution of crimes allegedly against the funds of the EU have recently been published. The review of the book is timely, as only now are the member states and Commission discussing the measure in earnest, particularly in light of the decision of a number of member states' Parliaments to "yellow card" the measure under the provisions of the Lisbon Treaty putting the Commission on notice that they feared the measure breached subsidiarity. The measure is significant, and this excellent book highlights the approach which underpins the decision to bring it forward in a period of austerity.

As Professor Ligeti acknowledges, the proposed EPPO "clearly challenges member states' sovereignty”. She recognises the principal issues that require determination, in particular the legal competence of such an office and the scope of criminal conduct under its jurisdiction, allied with the means by which related investigation and prosecution are undertaken – a supra-national body with EU-wide competence and harmonised offences, definitions, laws and procedure, or a more horizontal approach with offices in each of the member states. But which law, which procedure, what rules of evidence? For many the issue may seem insignificant, related to a small area of criminal law and specialised offences.

This book has a number of advantages for the criminal law practitioner. First and foremost, for those who are interested in the current developments of EU criminal law. However, cross-border crime is increasing, whether by use of the internet or the nature of criminal conduct across borders, such as people and drug trafficking. The book offers an outstanding comparative analysis of the pre-trial, investigative phase of criminal procedure in 20 member states' legal systems – including Scotland – and, as each analysis is written by a recognised national expert, enables the practitioner involved in such cross-border cases to have a ready, detailed and first hand account of the law and procedure in those states. This book, through its work on the development of the EPPO, brings a major contribution in practice to the very principle upon which its work is based, namely mutual recognition, to the national criminal practitioner engaged in ever increasing cross-border casework.

The Principle of Mutual Recognition in EU Law

Christine Janssens

PUBLISHER: OXFORD UNIVERSITY PRESS

PRICE: £70 (e-book available)

ISBN: 9780199673032

The principle of mutual recognition is the cornerstone of EU criminal justice. However, in this thorough examination of the principle, Christine Janssens demonstrates the success of transposing a notion developed in the commercial field of the internal market application and development of EU law into the area of justice and home affairs.

The significance of the principle cannot be underestimated, given it now forms the basis of EU law instruments from the European arrest warrant, freezing orders, transfer of sentenced persons, financial penalties, the so called "Euro bail", and the (soon to be with us) European investigation order, the last of which will see the application of the principle to the enforcement of search and seizure warrants across borders, replacing the current mechanism of mutual legal assistance.

In this excellent analysis of the application of the principle, Dr Janssens reaches the unassailable conclusion that the application of the principle in a cross-policy initiative has been a success. The principle envisages member states' national authorities executing requests for judicial co-operation, underpinned in the issuing state by a judicial decision, being enforced or executed in the requested state with the minimum of formality and few grounds for refusal. The principle is now so engrained in policy development and practice that for the practitioner who comes across its operation – and in the very near future it will be within the workload of the workaday criminal lawyer – this book is essential reading to understand the operation, practice, application and limitations of the measure.

Whose Responsibility?

A Study of Transnational Defence Rights and Mutual Recognition of Judicial Decisions within the EU

Malin Thunberg Schunke

PUBLISHER: INTERSENTIA

PRICE: £52

ISBN: 9781780681757

Dr Thunberg Schunke addresses perhaps the most important aspect of EU criminal procedure, namely the provision at an EU level of a common minimum standard of defence rights, without which the application of the European Convention on Human Rights and fair trial rights risks being illusory. The author analyses defence rights in the context of mutual recognition, and also considers whether "mutual recognition... can really function without a certain harmonisation of procedural law" – a fascinating and well conceived question, given the principle was developed in criminal law policy at EU level to avoid that consideration.

The author concludes there is a deficit in the EU policy provision on defence rights and their application before the national courts, in part through a strict interpretation of human rights by the European Court of Justice, which impacts on the scope of application of the Convention as grounds of opposition in execution of mutual recognition instrument measures. This argument is considered within the context of the high test established in the jurisprudence of the European Court of Human Rights' interpretation of fair trial rights, which requires a flagrant denial of justice be established under article 6. The author suggests, with some force, that this test must be "reconsidered and difficulties arising from... the burden of proof must be adjusted to the new realities of mutual recognition" – a potential opportunity missed when the Grand Chamber of the European Court of Justice dismissed Advocate General Sharpston's opinion in Radu (C-396/11). This is no dry academic text but rather a valuable contribution to a current debate in an essential area of practice in the ever increasing field of cross-border criminal law.

 

 


 

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