Taking European criminal law seriously

Criminal Law Review

Volumn 1998, Issue 6, 1998, Pages 361-379

  Baker, Estella ^a  

^a UNIVERSITY OF LEICESTER   (United Kingdom)

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EID: 3042949159     PISSN: 0011135X     EISSN: None     Source Type: Journal    
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References (114)

1. This article deals with the impact of Community law, the acquis communautaire, under the First Pillar of the Treaty on European Union upon criminal law and does not consider the intergovernmental Third Pillar, Justice and Home Affairs. Treaty Articles are numbered according to the pre-Amsterdam system unless otherwise stated.
2. See, inter alia, Jung, "Criminal Justice - a European Perspective" [1993] Crim.L.R. 237 at 237.
3. See, inter alia, Bridge, "The European Communities and the Criminal Law" [1976] Crim.L.R. 88; Hartley, "The Impact of Community Law on the Criminal Process" [1981] Crim.L.R. 75; Sevenster, "Criminal Law and EC Law" (1992) 29 C.M.L.Rev. 29; Dine, "European Community Criminal Law?" [1993] Crim.L.R. 246; Anderson et al. Policing the European Union (Clarendon Press, 1995), Chap. 6; Guldenmund et al. "The European Community and Criminal Law" in Harding et al. (eds), Criminal Justice in Europe: A Comparative Study (Clarendon Press, 1995); Delmas-Marty and Truche, "Uniformity or Compatibility of the National Legal Systems: From Identical Rules to Guiding Principles" in Delmas-Marty (ed.), A Criminal Policy for Europe? (Kluwer, 1996).
4. See, inter alia, Bridge, "The European Communities and the Criminal Law" [1976] Crim.L.R. 88; Hartley, "The Impact of Community Law on the Criminal Process" [1981] Crim.L.R. 75; Sevenster, "Criminal Law and EC Law" (1992) 29 C.M.L.Rev. 29; Dine, "European Community Criminal Law?" [1993] Crim.L.R. 246; Anderson et al. Policing the European Union (Clarendon Press, 1995), Chap. 6; Guldenmund et al. "The European Community and Criminal Law" in Harding et al. (eds), Criminal Justice in Europe: A Comparative Study (Clarendon Press, 1995); Delmas-Marty and Truche, "Uniformity or Compatibility of the National Legal Systems: From Identical Rules to Guiding Principles" in Delmas-Marty (ed.), A Criminal Policy for Europe? (Kluwer, 1996).
5. See, inter alia, Bridge, "The European Communities and the Criminal Law" [1976] Crim.L.R. 88; Hartley, "The Impact of Community Law on the Criminal Process" [1981] Crim.L.R. 75; Sevenster, "Criminal Law and EC Law" (1992) 29 C.M.L.Rev. 29; Dine, "European Community Criminal Law?" [1993] Crim.L.R. 246; Anderson et al. Policing the European Union (Clarendon Press, 1995), Chap. 6; Guldenmund et al. "The European Community and Criminal Law" in Harding et al. (eds), Criminal Justice in Europe: A Comparative Study (Clarendon Press, 1995); Delmas-Marty and Truche, "Uniformity or Compatibility of the National Legal Systems: From Identical Rules to Guiding Principles" in Delmas-Marty (ed.), A Criminal Policy for Europe? (Kluwer, 1996).
6. See, inter alia, Bridge, "The European Communities and the Criminal Law" [1976] Crim.L.R. 88; Hartley, "The Impact of Community Law on the Criminal Process" [1981] Crim.L.R. 75; Sevenster, "Criminal Law and EC Law" (1992) 29 C.M.L.Rev. 29; Dine, "European Community Criminal Law?" [1993] Crim.L.R. 246; Anderson et al. Policing the European Union (Clarendon Press, 1995), Chap. 6; Guldenmund et al. "The European Community and Criminal Law" in Harding et al. (eds), Criminal Justice in Europe: A Comparative Study (Clarendon Press, 1995); Delmas-Marty and Truche, "Uniformity or Compatibility of the National Legal Systems: From Identical Rules to Guiding Principles" in Delmas-Marty (ed.), A Criminal Policy for Europe? (Kluwer, 1996).
7. See, inter alia, Bridge, "The European Communities and the Criminal Law" [1976] Crim.L.R. 88; Hartley, "The Impact of Community Law on the Criminal Process" [1981] Crim.L.R. 75; Sevenster, "Criminal Law and EC Law" (1992) 29 C.M.L.Rev. 29; Dine, "European Community Criminal Law?" [1993] Crim.L.R. 246; Anderson et al. Policing the European Union (Clarendon Press, 1995), Chap. 6; Guldenmund et al. "The European Community and Criminal Law" in Harding et al. (eds), Criminal Justice in Europe: A Comparative Study (Clarendon Press, 1995); Delmas-Marty and Truche, "Uniformity or Compatibility of the National Legal Systems: From Identical Rules to Guiding Principles" in Delmas-Marty (ed.), A Criminal Policy for Europe? (Kluwer, 1996).
8. See, inter alia, Bridge, "The European Communities and the Criminal Law" [1976] Crim.L.R. 88; Hartley, "The Impact of Community Law on the Criminal Process" [1981] Crim.L.R. 75; Sevenster, "Criminal Law and EC Law" (1992) 29 C.M.L.Rev. 29; Dine, "European Community Criminal Law?" [1993] Crim.L.R. 246; Anderson et al. Policing the European Union (Clarendon Press, 1995), Chap. 6; Guldenmund et al. "The European Community and Criminal Law" in Harding et al. (eds), Criminal Justice in Europe: A Comparative Study (Clarendon Press, 1995); Delmas-Marty and Truche, "Uniformity or Compatibility of the National Legal Systems: From Identical Rules to Guiding Principles" in Delmas-Marty (ed.), A Criminal Policy for Europe? (Kluwer, 1996).
9. See, inter alia, Bridge, "The European Communities and the Criminal Law" [1976] Crim.L.R. 88; Hartley, "The Impact of Community Law on the Criminal Process" [1981] Crim.L.R. 75; Sevenster, "Criminal Law and EC Law" (1992) 29 C.M.L.Rev. 29; Dine, "European Community Criminal Law?" [1993] Crim.L.R. 246; Anderson et al. Policing the European Union (Clarendon Press, 1995), Chap. 6; Guldenmund et al. "The European Community and Criminal Law" in Harding et al. (eds), Criminal Justice in Europe: A Comparative Study (Clarendon Press, 1995); Delmas-Marty and Truche, "Uniformity or Compatibility of the National Legal Systems: From Identical Rules to Guiding Principles" in Delmas-Marty (ed.), A Criminal Policy for Europe? (Kluwer, 1996).
10. Dine, above n.3, at 254.
11. See, e.g. Article 209a E.C. discussed below at n.18.
12. See Smith and Hogan, Criminal Law (Butterworths, 8th ed., 1996), p.272.
13. See generally Craig and de Búrca, EC Law: Text, Cases and Materials (Clarendon Press, 1995), Chaps 7 and 8.
14. Case 6/64 Costa v. ENEL [1964] E.C.R. 585.
15. The Human Rights Bill, HLB 51 (Session 1997-98).
16. See, inter alia, Ashworth, "The European Convention on Human Rights" (Editorial) [1997] Crim.L.R. 461; Ashworth, "The Human Rights Bill" (Editorial) [1998] Crim.L.R. 1; Ovey, "The European Convention on Human Rights and the Criminal Lawyer: An Introduction" [1998] Crim.L.R. 4.
17. See, inter alia, Ashworth, "The European Convention on Human Rights" (Editorial) [1997] Crim.L.R. 461; Ashworth, "The Human Rights Bill" (Editorial) [1998] Crim.L.R. 1; Ovey, "The European Convention on Human Rights and the Criminal Lawyer: An Introduction" [1998] Crim.L.R. 4.
18. See, inter alia, Ashworth, "The European Convention on Human Rights" (Editorial) [1997] Crim.L.R. 461; Ashworth, "The Human Rights Bill" (Editorial) [1998] Crim.L.R. 1; Ovey, "The European Convention on Human Rights and the Criminal Lawyer: An Introduction" [1998] Crim.L.R. 4.
19. e.g. the right to silence provisions of the Criminal Justice and Public Order Act 1994 and surveillance provisions of the Police Act 1997.
20. See generally Pollard and Ross, European Community Law: Text and Materials (Butterworths, 1994), Chap. 1.
21. e.g. Directive 91/308 on the Prevention of the Use of the Financial System for the Purpose of Money Laundering ([1991] O.J. L166/77).
22. Re M [1994] 1 A.C. 377.
23. Case 68/88 Commission v. Greece [1989] E.C.R. I-2965.
24. ibid., paras 24-25.
25. For a full discussion see Harding, "Member State Enforcement of European Community Measures: The Chimera of 'Effective' Enforcement" (1997) 4 M.J. 5, especially at p.9f.
26. The Treaty inserted a new provision, Article 209a, into the E.C. Treaty. This will be further strengthened by providing for harmonisation across the Member States when the Amsterdam Treaty is ratified: see the new Article 280 E.C. These measures are complemented by initiatives to counteract fraud under the Third (intergovernmental) Pillar of the Treaty on European Union: Convention on the Protection of the European Communities' Financial Interests ([1995] O.J. C316/49); Protocol to the Convention on the Protection of the European Communities' Financial Interests ([1996] O.J. C313/01). Regarding the response of English law see the Criminal Justice Act 1993, s.71. For a general discussion of the problem of fraud see Kuhl, "The Criminal Law Protection of the Communities' Financial Interests against Fraud - Part I" [1998] Crim.L.R. 259 and Part II [1998] Crim.L.R. 323.
27. The Treaty inserted a new provision, Article 209a, into the E.C. Treaty. This will be further strengthened by providing for harmonisation across the Member States when the Amsterdam Treaty is ratified: see the new Article 280 E.C. These measures are complemented by initiatives to counteract fraud under the Third (intergovernmental) Pillar of the Treaty on European Union: Convention on the Protection of the European Communities' Financial Interests ([1995] O.J. C316/49); Protocol to the Convention on the Protection of the European Communities' Financial Interests ([1996] O.J. C313/01). Regarding the response of English law see the Criminal Justice Act 1993, s.71. For a general discussion of the problem of fraud see Kuhl, "The Criminal Law Protection of the Communities' Financial Interests against Fraud - Part I" [1998] Crim.L.R. 259 and Part II [1998] Crim.L.R. 323.
28. The Treaty inserted a new provision, Article 209a, into the E.C. Treaty. This will be further strengthened by providing for harmonisation across the Member States when the Amsterdam Treaty is ratified: see the new Article 280 E.C. These measures are complemented by initiatives to counteract fraud under the Third (intergovernmental) Pillar of the Treaty on European Union: Convention on the Protection of the European Communities' Financial Interests ([1995] O.J. C316/49); Protocol to the Convention on the Protection of the European Communities' Financial Interests ([1996] O.J. C313/01). Regarding the response of English law see the Criminal Justice Act 1993, s.71. For a general discussion of the problem of fraud see Kuhl, "The Criminal Law Protection of the Communities' Financial Interests against Fraud - Part I" [1998] Crim.L.R. 259 and Part II [1998] Crim.L.R. 323.
29. The Treaty inserted a new provision, Article 209a, into the E.C. Treaty. This will be further strengthened by providing for harmonisation across the Member States when the Amsterdam Treaty is ratified: see the new Article 280 E.C. These measures are complemented by initiatives to counteract fraud under the Third (intergovernmental) Pillar of the Treaty on European Union: Convention on the Protection of the European Communities' Financial Interests ([1995] O.J. C316/49); Protocol to the Convention on the Protection of the European Communities' Financial Interests ([1996] O.J. C313/01). Regarding the response of English law see the Criminal Justice Act 1993, s.71. For a general discussion of the problem of fraud see Kuhl, "The Criminal Law Protection of the Communities' Financial Interests against Fraud - Part I" [1998] Crim.L.R. 259 and Part II [1998] Crim.L.R. 323.
30. See generally Harding and Swart (eds), Enforcing European Community Rules: Criminal Proceedings, Administrative Procedures and Harmonization (Dartmouth, 1996).
31. The technical detail of Article 177 was covered in more detail in Dine, above n.3 and see generally Craig and de Búrca, above n.7, Chap. 10; Weatherill and Beaumont, EC Law (Penguin, 2nd ed., 1995), Chap. 9 and the recent survey in Barnard and Sharpston, "The Changing Face of Article 177 References" (1997) 34 C.M.L.Rev. 1113.
32. The technical detail of Article 177 was covered in more detail in Dine, above n.3 and see generally Craig and de Búrca, above n.7, Chap. 10; Weatherill and Beaumont, EC Law (Penguin, 2nd ed., 1995), Chap. 9 and the recent survey in Barnard and Sharpston, "The Changing Face of Article 177 References" (1997) 34 C.M.L.Rev. 1113.
33. Cases C-358/93 and C-416/93 Aldo Bordessa [1995] E.C.R. I-361, para. 10.
34. See, inter alia, Cases C-60 and C-61/84 Cinéthèque v. Fédération National des Cinémas Français [1985] E.C.R. 2605, para. 25; Case C-260/89 ERT v. Dimotiki [1991] E.C.R. I-2925, para. 2; Case C-159/90 Society for the Protection of the Unborn Children Ireland Ltd v. Grogan [1991] E.C.R. I-4685, para. 31.
35. See, e.g. Case C-269/80 Tymen [1981] E.C.R. 3079. This applies regardless of the fact that the crime concerned was enacted after accession to the Community contrary to the normal English doctrine of implied repeal: Case C-213/89 R. v. Secretary of State, ex p. Factortame [1990] E.C.R. I-2433.
36. Specifically, Regulations, Directives and Decisions.
37. Case 26/62 Van Gend en Loos v. Nederlandse Administrate der Belastingen [1963] E.C.R. 1.
38. A thorough survey of the content of these rights, which varies according to the type of legal instrument concerned, is beyond the scope of the article. For a detailed discussion see, inter alia, Craig and de Búrca, above n.7, Chap. 4; Weatherill and Beaumont, above n.20, Chap. 11.
39. Cases C-358/93 and C-416/93 Aldo Bordessa [1995] E.C.R. I-361.
40. Council Directive 88/361 of June 24, 1988 for the Implementation of Article 67 of the Treaty ([1988] O.J. L178/05).
41. Article 189 E.C.
42. Article 4 of the Directive discussed in paras 27, 31 of the judgment.
43. Cases C-358/93 and C-416/93 Aldo Bordessa [1995] E.C.R. I-361, paras 24-26, 28-31.
44. ibid., paras 32-35.
45. It should be noted that direct effect creates non-reciprocal rights in individuals as against the Member State. Therefore, if a prosecution is brought in reliance upon a Directive that has either not been transposed at all or has been transposed incorrectly or inadequately, a defence will arise. A Directive that has not been implemented cannot "have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of [its] provisions": Case C-168/95 Luciano Arcaro [1996] E.C.R. I-4705, para. 37 of the judgment. See also Case C-148/78 Ratti [1979] E.C.R. 1629.
46. If direct effect could be relied upon during the transposition period the distinction between Directives and Regulations would be undermined. The importance of this objection is emphasised by the introduction in Article 3b E.C. of the principle of subsidiarity which places a premium on preserving the discretion of Member States.
47. According to the doctrine of "indirect effect", a national court must interpret national law "as far as possible, in the light of the wording and purpose of [Community law] in order to achieve the result pursued by the latter and thereby comply with it": Case C-106/89 Marleasing SA v. La Comercial International de Alimentacion SA [1990] E.C.R. I-4135, para. 20. See also Case C-91/92 Dori v. Recreb [1994] E.C.R. I-3325; Case 14/83 Von Colson and Kamann v. Land Nordrhein-Westfalen [1984] E.C.R. 1891. Since Article 189 E.C. creates a legal obligation on each Member State to implement a Directive from the point that it is adopted and a national court would have to presume good faith on the part of the Member State in its intention to abide by its Treaty obligations, it is arguable that the doctrine of indirect effect requires a national court to interpret national law in the light of a yet-to-be transposed Directive. It is not clear, however, that this would always yield exactly the same measure of enjoyment and protection as direct effect.
48. Cases C-358/93 and C-416/93 Aldo Bordessa [1995] E.C.R. I-361, para. 10 of the Opinion of the Advocate General.
49. As the extended deadline for transposition was December 31, 1992 and the defendants were arrested on November 10 and 19, 1992 respectively, the defence would have been available less than two months later. For an explicit articulation of this argument in a different context see Case C-341/94 Allain [1996] E.C.R. I-4631 at paras 11-12.
50. See also, inter alia, Cases C-193/94 Sofia Skanavi and Konstantin Chryssanthakopoulos [1996] E.C.R. I-929, para. 17 (reference from a German court); C-341/94 Allain [1996] E.C.R. I-4631, para. 12 (reference from a French court).
51. Although the issue has recently arisen for discussion by the Privy Council: Chan Chi-hung v. R. [1996] A.C. 442, the domestic literature deals with retroactive criminalisation and the retroactive imposition of harsher penalties. See, e.g. Ashworth, Principles of Criminal Law (Clarendon Press, 2nd ed., 1995), pp.67-71.
52. Article 48(3) E.C.
53. Case C-83/94 Peter Leifer [1995] E.C.R. I-3231. The Opinion of the Advocate General is reported at Case C-70/94 Fritz Werner Industrie-Ausrüstungen GmbH v. Federal Republic of Germany [1995] E.C.R. I-3189.
54. Council Regulation 2603/69 of December 20, 1969 (O.J. Sp. Ed. 1969 (II), p.590) as amended.
55. Case C-83/94 Peter Leifer [1995] E.C.R. I-3231, para. 4.
56. ibid., para. 6.
57. ibid., paras 14-23. For a general discussion of "quantitative restrictions" and "measures having equivalent effect" see Craig and de Búrca, above n.7, Chap. 14; Weatherill and Beaumont, above n.20, Chap. 17.
58. Case C-367/89 Richardt and "Les Accessoires Scientifiques" [1991] E.C.R. I-4621, a case under Article 36 of the Treaty.
59. There is a growing recognition that internal and external security policies are becoming fused: see Anderson et al. above n.3, Chap. 5; Dorn, "Borderline Criminology: External Drug Policies of the EU" in Dorn et al. (eds), European Drug Policies and Enforcement (Routledge, 1996); Dorn and White, "Beyond 'Pillars' and 'Passerelle' Debates: The European Union's Emerging Crime Prevention Space" 1997/1 L.I.E.I. 79.
60. There is a growing recognition that internal and external security policies are becoming fused: see Anderson et al. above n.3, Chap. 5; Dorn, "Borderline Criminology: External Drug Policies of the EU" in Dorn et al. (eds), European Drug Policies and Enforcement (Routledge, 1996); Dorn and White, "Beyond 'Pillars' and 'Passerelle' Debates: The European Union's Emerging Crime Prevention Space" 1997/1 L.I.E.I. 79.
61. Case C-83/94 Peter Leifer [1995] E.C.R. I-3231, para. 28.
62. ibid. paras 29-30.
63. ibid. para. 33.
64. ibid. paras 34-36.
65. For an interesting example of how a value conflict can nevertheless arise in the first analytical situation see R. v. Chief Constable of Sussex, ex p. International Traders Ferry Ltd [1997] 2 All E.R. 65 discussed in Barnard and Hare, "The Right to Protest and the Right to Export: Police Discretion and the Free Movement of Goods" (1997) 60 M.L.R. 394.
66. Case 6/64 Costa v. ENEL [1964] E.C.R. 585; Case C-213/89 R. v. Secretary of State, ex p. Factortame [1990] E.C.R. I-2433.
67. It should be noted, though, that the question of who qualifies as "citizens" for this purpose is controversial. See, inter alia, Hebenton and Thomas, Policing Europe: Co-operation, Conflict & Control (MacMillan, 1995), Chap. 6.
68. See the discussion of the Greek Maize case in the text at nn.15-19.
69. Case C-83/94 Peter Leifer [1995] E.C.R. I-3231, para. 39.
70. Case C-193/94 Sofia Skanavi and Konstantin Chryssanthakopoulos [1996] E.C.R. I-929.
71. Council Directive 80/1263 of December 4, 1980 on the Introduction of a Community Driving Licence ([1980] O.J. L375/01).
72. Case C-193/94 Sofia Skanavi and Konstantin Chryssanthakopoulos [1996] E.C.R. I-929, para. 14.
73. ibid. para. 38.
74. ibid. paras 32-33.
75. ibid. paras 34-35.
76. ibid. para. 36.
77. ibid. paras 37-39.
78. Particularly since the original Directive has been superseded by a later one that provides for the mutual recognition of driving licences, removing the exchange requirement: Council Directive 91/439 of July 29, 1991 on Driving Licences ([1991] O.J. L237/01).
79. It should be remembered here that the Treaty confers freedom of movement to goods, services and capital as well as persons. Therefore, penalties affecting these commodities may also be in jeopardy.
80. See, for example, Case C-299/95 Friedrich Kremzow v. Republik Österreich [1997] E.C.R. I-2629.
81. ibid.
82. However, the approach of the Court is now endorsed by Article F(2) TEU which avers, "respect [for] fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms . . . and as they result from the constitutional traditions common to the Member States, as general principles of Community law." This commitment will be reinforced when the Treaty of Amsterdam is ratified by a new power in the Council of Ministers to suspend the rights of Member States who are found to be in "serious and persistent breach", inter alia, of the principle of respect for fundamental rights: new Article 7 TEU.
83. See, inter alia, Case C-4/73 Nold v. Commission [1974] E.C.R. 491; Case C-44/79 Liselotte Hauer v. Land Rheinland-Pfalz [1979] E.C.R. 3727; Case C-5/88 Wachauf v. Federal Republic of Germany [1989] E.C.R. 2609; Case C-260/89 ERT v. Dimotiki [1991] E.C.R. I-2925; Case C-159/90 Society for the Protection of the Unborn Children Ireland Ltd v. Grogan [1991] E.C.R. I-4685; Case C-299/95 Friedrich Kremzow v. Republik Österreich [1997] E.C.R. I-2629. For a general discussion see Craig and de Búrca, above n.7, Chap. 8.
84. Case C-260/89 ERT v. Dimotiki [1991] E.C.R. I-2925, para. 41.
85. ibid.
86. ibid.
87. The insistence by the Court in retaining its independence has been made all the more necessary by the fact that the Amsterdam Treaty does not affect its ruling that the Community does not have competence to become a signatory to the Convention in its own right: Opinion 2/94 of the Court (Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms) [1996] E.C.R. I-1759. For a discussion of the implications of the Opinion see Toth, "The European Union and Human Rights: The Way Forward" (1997) 34 C.M.L.Rev. 491.
88. The insistence by the Court in retaining its independence has been made all the more necessary by the fact that the Amsterdam Treaty does not affect its ruling that the Community does not have competence to become a signatory to the Convention in its own right: Opinion 2/94 of the Court (Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms) [1996] E.C.R. I-1759. For a discussion of the implications of the Opinion see Toth, "The European Union and Human Rights: The Way Forward" (1997) 34 C.M.L.Rev. 491.
89. For an example see Cases 46/87, 227/88 Hoechst v. Commission [1989] E.C.R. 2859 and Niemitz v. Germany, judgment of December 16, 1992, Series A, No. 251-B; (1992) 35 Y.B.E.C.H.R. 209.
90. Case C-144/95 Jean-Louis Maurin [1996] E.C.R. I-2909.
91. Council Directive 79/112 of December 18, 1978 on the Approximation of the Laws of the Member States Relating to the Labelling, Presentation and Advertising of Foodstuffs for Sale to the Ultimate Consumer ([1979] O.J. L33/01) as amended.
92. Case C-144/95 Jean-Louis Maurin [1996] E.C.R. I-2909, paras 8-12.
93. Case C-299/95, [1997] E.C.R. I-2629.
94. Kremzow v. Austria, judgment of September 21, 1993, Series A, No. 268-B.
95. Case C-299/95 Friedrich Kremzow v. Republik Österreich [1997] E.C.R. I-2629, para. 13.
96. ibid. paras 16-18. Kremzow had been convicted of murder and illegal possession of a firearm.
97. See, inter alia, the money laundering offences introduced by the Criminal Justice Act 1993, ss.29-32 which carry maximum penalties of up to 14 years' imprisonment.
98. It is, of course, possible that the putative receiving Member State might attempt to bar entry on public policy or public security grounds. Respecting employed and self-employed workers this is dealt with by Council Directive 64/221 of February 25, 1964 on the Co-ordination of Special Measures Concerning the Movement and Residence of Foreign Nationals which are Justified on Grounds of Public Policy, Public Security or Public Health (O.J. Sp. Ed. 1963-4, 117). Article 3 provides that measures taken on public policy or public security grounds must be based exclusively on the personal conduct of the individual concerned and that previous convictions per se do not satisfy this requirement. The Court has interpreted these provisions strictly. In the context of workers it has held that the Member State must show a "genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society": see Case 30/77 Bouchereau [1977] E.C.R. 1999, para. 35. See also Cases 115/81, 116/81 Rezguia Adoui and Dominique Cornuaille v. Belgium [1982] E.C.R. 1665.
99. See also the view expressed by Advocate General Jacobs in his Opinion in Case C-168/91 Christos Konstantinidis [1993] E.C.R. I-1191 that any individual who exercises his or her rights under the Treaty is: "entitled to assume that, . . . , he will be treated in accordance with a common code of fundamental values, in particular those laid down in the European Convention on Human Rights. In other words, he is entitled to say 'civis europeus sum' and to invoke that status in order to oppose any violation of his fundamental rights." (para. 46).
100. Cases C-358/93 and C-416/93 Aldo Bordessa [1995] E.C.R. I-361.
101. See generally Harris et al., The European Convention on Human Rights (Butterworths, 1995), Chap. 7; Jacobs and White, The European Convention on Human Rights (Clarendon Press, 2nd ed., 1996), Chap. 9.
102. See generally Harris et al., The European Convention on Human Rights (Butterworths, 1995), Chap. 7; Jacobs and White, The European Convention on Human Rights (Clarendon Press, 2nd ed., 1996), Chap. 9.
103. Cmnd. 6702 (HMSO, 1977).
104. See, for example, the Opinion of Advocate General Jacobs in Case C-168/91 Christos Konstantinidis [1993] E.C.R. I-1191.
105. Case C-368/95 Vereinigte Familiapress Zeitungsverlags und vertriebs GmbH v. Heinrich Bauer Verlag [1997] E.C.R. I-3689, para. 24; Case C-260/89 ERT v. Dimotiki [1991] E.C.R. I-2925, para. 44.
106. Re M [1994] 1 A.C. 377.
107. ibid. at 407.
108. Case C-213/89 R. v. Secretary of State for Transport, ex p. Factortame [1990] E.C.R. I-2433.
109. Discussed in Arnull, "Interpretation and Precedent in English and Community Law: Evidence of Cross-Fertilisation?", paper to the SPTL seminar, The Common Law of Europe and the Public Law of the UK, held at King's College London, June 14, 1997.
110. Smith and Hogan, above, n.6, at 272.
111. See Robinson, "Criminal Law Defenses" (1982) 82 Col.LR. 199 at 229f.
112. ibid., i.e. failure of proof, offence modification, justification and excuse as well as non-exculpatory public policy.
113. e.g. on the reaction to the introduction of the Charter of Rights in Canada see Stuart, Charter Justice in Canadian Criminal Law (Carswell, 2nd ed., 1996).
114. Human Rights Bill, HLB 51 (Session 1997-98), cl.2.