Part C Technology and Criminal Law - A European Perspective

Tessa Robinson

This part of the chapter presents a European perspective of computer misuse, computer-generated evidence, jurisdiction and procedure, in the main setting down the relevant legislation and using case examples from England and Ireland to illustrate key points. The first section of this part considers how the criminal law in Europe deals with computer related crime. The elements to be discussed are the types of offenses involved, rules with respect to search and seizure warrants, and sentencing policy in respect of child pornography offences.

The European Union (EU) is a political union between 15 European countries, 12 of which make up the Euro zone. Its common objective is to offer a single market. The union is currently under expansion (Turkey and some former Eastern bloc countries are in negotiation over accession) and at the time of writing is undergoing constitutional change. The union can be compared to the Federal and State legal systems in the United States, although EU member states would hold that they enjoy a much greater degree of sovereignty. While EU legislation (directives, decisions, recommendations and opinions) emanates from the European Institutions (the Parliament, Council and Commission), it is incorporated by member state governments into domestic law and applied by national courts. In summary, the European Courts located in Strasbourg (the Court of First Instance (CFI) and the European Court of Justice (ECJ)) derive jurisdiction under the European Treaties in the following circumstances:

• Preliminary rulings - Disputes involving Community law are heard by domestic courts which apply the relevant EU law principles. The Treaty provisions provide for a mechanism whereby a national court may request the ECJ to rule on questions of Community law that arise in the course of domestic litigation. Note that the CFI does not have jurisdiction to give preliminary rulings.

• Direct actions against member states - Where member states are alleged to have infringed their Community obligations, actions may be brought by the Commission or by another member state.

• Judicial review of Community acts - Where the legality of acts of the European Institutions intended to produce legal effects are in dispute, actions may be brought by the Council, Commission, member states and natural and legal persons (i.e. individuals or companies) - where they can establish the requisite interest in the impugned act to achieve standing.

• Plenary jurisdiction - Natural and legal persons may bring actions against the Commission to review penalties imposed. In limited circumstances expressed in the Treaties, there lie actions in contract and tort.

While EU member states have created a single economic area without borders, they currently maintain separate national criminal jurisdictions and policing systems. The move towards greater Europe-wide harmonization of these areas has however been facilitated by provisions in the Treaty of Amsterdam regarding police and judicial cooperation (Articles 29–42), and is on the agenda of the working group involved in putting together a new constitution for the EU.