1. Memorandum submitted by the Association
of Chief Police Officers of England, Wales and Northern Ireland
This paper will cover:
1. Cooperation through multilateral legal
framework agreements.
2. Cooperation through bilateral or non-framework
arrangements.
COOPERATION THROUGH
MULTILATERAL LEGAL
FRAMEWORK AGREEMENTS
The best known arrangements for cooperation
fall within the Schengen Acquis and the European Framework Decision
on Extradition which introduced the European Arrest Warrant (EAW).
Schengen Cooperation
While we seek to participate to the fullest
extent in EU measures the maintenance of UK frontier controls
remains a fundamental principle of immigration policy.
Since 1 January 2005 the UK has participated
in all police and judicial cooperation provisions (except "hot-pursuit")
and participates in related EU measures derived from the Schengen
Acquis (so-called Schengen building measures).
Under the Schengen Acquis, Section 39 permits
police agencies to assist each other as long as this does not
require coercive or evidential measures. Essentially, it facilitates
the exchange of information on a police-to-police basis for the
prevention and detection of criminal offences. Although it is
anticipated that these exchanges take place between agreed central
bureaux (in the UK's case via the Serious Organised Crime Agency—SOCA),
this does not prevent the agreement of closer bilateral ties in
border areas.
Section 46 recognises that countries will come
across information that may be of benefit to another state in
order to prevent crime and offences. This article permits the
forwarding of the information without being asked to do so.
Exchanges of information are subject to national
codes of practice to ensure legal compliance and adequate data
protection.
Section 40 permits the continuance of surveillance
from one member state to another, subject to strict granting of
authority.
In the field of law enforcement cooperation
the UK is a gross exporter of requests for assistance from other
member states. Using SOCA as a central bureau, the UK receives
vastly more information from abroad than is released. This is
due to the UK focussing on intelligence-led investigations and
the high standards of evidence required.
Member states have different legal systems and
sensitivities. Other member states have recognised and accepted
the UK's stance on prohibition of entering UK territory with firearms.
This illustrates a key point. In order to cooperate within an
area of freedom, security and justice it is not always necessary,
or desirable, to seek harmonisation of criminal law. Often, it
needs mutual recognition of legal systems and authorised agencies
working within a framework decision which can be implemented at
national level.
"Article 96" information and the Visa
Information System
For law enforcement and national security purposes
UK agencies wish to have access to Article 96 data on the SIS.
Although ostensibly for immigration and visa purposes many of
the subjects of Article 96 alerts have been refused access to
the Schengen area because of criminal convictions or national
security issues. The Home Office supports ACPO and SOCA in seeking
to persuade the Council Legal Service that such access is proper
and lawful.
The proposed Visa Information System (VIS) will
provide information on individuals who may have attempted entry
into several states and have abused the process. The UK has asked
for access to the data for security and crime prevention purposes.
The Council Legal Service has argued that the proposal is a first
pillar Schengen building measure and that therefore the UK should
not be allowed to participate.
The UK has been pushing strongly for VIS access,
offering full reciprocity to our visa data in return. We have
argued that as the purpose is law enforcement, and as the legal
base covers police co-operation, in the third pillar, this proposal
cannot be classified as a first pillar measure. Again ACPO welcomes
this Home Office support.
Extradition (European Arrest Warrant—EAW)
A further example is the Framework Decision
on Extradition. It is impossible to mount operations to capture
every serious criminal wanted by the Police or Courts. What is
required is a large "net", to locate these people when
they are vulnerable. Within a short time of EAW's becoming available
and SOCA having entered warrants received on the Police National
Computer, the UK obtained results from routine checks.
On 1 October 2002, a suspect went to a jeweller's
shop in Cacern, Portugal and entered holding a firearm which was
pointed at the shop's owner. Display cabinets containing gold
jewellery were forced items to the value of 23,820,00 Euros stolen.
The owner's son entered whilst this was taking place; he was shot
in the abdomen and later died.
1. EAW issued by Portugal on 16.03.2004.
2. EAW received in UK 07.04.2004.
3. EAW certified by UK Central Authority
(NCIS, now SOCA) 07.04.2004.
4. Subject arrested on EAW 09.04.2004.
5. Initial Hearing (Bow St Magistrates
Court) 10.04.2004.
6. Further hearing (to further remand
in custody) 16.04.2004.
7. Extradition Hearing (BSMC) 23.04.2004.
8. Subject surrendered to Portuguese authorities
04.05.2004.
On the 9 April 2004 the suspect was arrested
by Metropolitan Police Officers, for an unrelated offence of shoplifting
in London's West End. A check on the Police National Computer
revealed the existence of the EAW...
This is a serious, high profile crime. The introduction
of the EAW permits an extended reach for all crimes fitting the
agreed criteria:
A Lithuanian national was circulated by Lithuania
as wanted for theft. Despite there being no strong UK connection
he was circulated on PNC. On 16 October 2006 he was seen by officers
in Birmingham searching rubbish bins. He was questioned, identified
via his passport and subsequently arrested. He was returned to
Lithuania on 9 November.
Another Lithuanian national was circulated
by Lithuania for fraud. He was stopped by West Midlands police
and arrested for minor traffic offences. Once a check was conducted
the officer saw the PNC circulation, called SOCA and the person
was arrested for extradition.
The EAW process concentrates on two key elements:
— The validity of the warrant.
— The identification of the person
on the warrant.
This minimises opportunities for drawn out legal
argument.
Extradition and the Schengen Information System
Once the European Commission has completed its
next generation Schengen Information System II Project the UK
will integrate to the system. This will permit the electronic
receipt and validation of incoming EAW's and make them searchable
via PNC. This will greatly increase the number of EAW's which
can be processed, including the existing 16,000 extradition requests
from other member states. Additionally, the UK will have a simplified
system for sending EAW's throughout the member states. The UK
will need to review its policing and criminal justice capacity
to seek, draft, validate and disseminate EAW's and provide resources
to collect suspects arrested abroad. This process must strike
a balance between operational benefit and realistic use of resources.
Another key issue is the ability of the UK's
agencies to manage the number of incoming extradition alerts.
The UK's maintenance of borders and controls brings a likelihood
of a greater number of arrests than would be seen in another member
state of comparable size. ACPO, SOCA, CPS, the Home Office and
Courts must address this issue.
From the UK's point of view there is a gap between
the freedom for people and goods to cross frontiers and the ability
to send information about those in whom the police have an interest.
The SIS II and its supporting network of SIENE Bureaux will provide
the only coordinated means to rapidly exchange information on:
— People wanted for extradition.
— People to be located for judicial
purposes.
— Discreet information reports on serious
criminals and linked vehicles, boats, aircraft, containers.
— A wide range of lost/stolen property
including vehicles, identity documents, industrial equipment,
firearms.
The SIS is the only way which can be envisaged
to make this information routinely available to law enforcement
officers across the member states in a way which requests the
action to be taken and provides a network of international assistance.
It is a system which would expect to get 20,000 hits across the
member states in any given year. With the extension of membership
and wider use this total can only go up.
In Justice and Home Affairs the relationship
between the Home Office and law enforcement community is very
encouraging. Throughout the debate covering the legal base for
SISII there was excellent collaboration between the Home Office
and ACPO to ensure that practicality was achieved. This included
the potential to use fingerprints as the primary means of identifying
the subject of an EAW. The UK must press for early adoption of
this provision and support the Commission and member states in
the earliest possible activation of SISII with the desired enhancements
including:
— The ability to link alerts.
— Attachment of biometric data to alerts.
— Attachment of a copy of an EAW to
the alert.
The Prüm Treaty
A similar healthy relationship exists in considering
the UK's stance on the Prüm Treaty. This treaty, signed by
seven member states, aims to increase the range and availability
of information which law enforcement agencies can routinely query.
It covers:
— DNA and fingerprint database searches
and exchange of personal data following a match against a record.
— Access to vehicle registers.
— Measures to prevent terrorism.
— Guidance on sky marshals.
— Guidance on service weapons.
— Measures to reduce illegal immigration,
including document liaison officers and coordinated removals.
— An ability to provide a basis for
joint patrols in border areas, including prevention of danger
and response to major incidents.
— Formalisation of routine checks including
registered vehicle keepers, licences, addresses, telephone subscribers.
There are two important points. Firstly, the
UK has clear reservations about certain elements of the treaty.
Working within a framework of mutual recognition and respect for
national working practices, this should not prevent the UK looking
for the operational advantages held within the treaty. Secondly,
nothing in the treaty precludes bilateral arrangements which favour
local cooperation.
The background is increasing international travel
and movement of international criminals. It is foreseeable that
central bureaux will not be able to handle the traffic in real-time
requests for information. Nor is it perhaps desirable that they
should attempt it. What is required is a framework to permit the
lawful exchange of information, in a transparent fashion, providing
guidance and protection to officers and citizens alike.
UK Central Authority for the Exchange of Criminal
Records
The need to improve the quality of information
exchanged on convictions was prioritised in the European Council
Declaration on Combating Terrorism in 2004. This work was given
added impetus following two cases in Belgium[1]
and France[2].
An EU Council Decision, in November 2005, declared
a requirement for all EU member states to exchange criminal record
information via Central Authorities. This intended to improve
the systems of the 1959 Convention on Mutual Legal Assistance
in Criminal Matters.
After considering bids to set up this Authority,
the Home Secretary declared that ACPO should take the lead. On
21 May 2006 the UK Central Authority for the Exchange of Criminal
Records (UKCA—ECR) was launched as part of the ACPO Criminal
Records Office (ACRO).
The main tasks for the UKCA—ECR are:
— To notify the relevant member state
of any conviction(s) imposed in the UK on a national from that
member state.
— To receive notification of a conviction
of a UK national in another member state and then to:
1. Ensure that PNC is updated or
new criminal records created.
2. Ensure that convictions related
to nationals from Scotland and Northern Ireland are entered onto
PNC and the full details forwarded to the Scottish Criminal Records
Office and Police Service of Northern Ireland.
3. Ensure that appropriate action
is taken if fingerprints are attached to the conviction notification.
— To receive and respond to requests,
from all UK Police forces and other law enforcement agencies,
for an extract of the criminal record of a national from another
member state.
— To receive and respond to requests
from another member state, for an extract of the criminal record
of a UK National. Whilst this process does not facilitate employment
vetting it does ensure that CRB searches are carried out against
PNC records that also contain any relevant foreign convictions
of UK Nationals.
Since 21 May 2006 to the date of this report,
there have been 331 UK requests for criminal records checks with
21 countries within the EU. 157 (47%) of these requests were for
Poland alone, next were the Czech Republic with 32. Of the enquiries
requested from other EU countries, it has been found that 37%
do have previous criminal convictions in their country of nationality.
The speed at which some of the EU countries
respond to UK police requests has been impressive, particularly
Poland, which process requests in less than two days. In the past
checks through Mutual Legal assistance and Interpol would take
months.
The benefits of this work are considerable.
It has the potential to enhance future CRB vetting checks, and
will give the police service improved and up to date information
to assist in investigations.
Other benefits include:
— The exchange of criminal records
will enable patterns of criminality to be more readily identified,
facilitating the appropriate operational response. People smuggling,
international paedophilia, drug trafficking, as well as terrorist
related offences are crimes which are trans-national by nature.
— Courts will be able to take account
of a convicted person's complete offending history when considering
sentencing.
— Having a dedicated Central Authority
within the UK has already ensured greater accuracy in the creation
and updating of records. The unit is also able to ensure consistency
in identification of the offender by encouraging the exchange
of fingerprints, (and perhaps later DNA), to prove identity.
— There will be an increased opportunity
to identify wanted persons, both in the UK and those subject of
a European Arrest Warrant. This will lead to the apprehension
of offenders, denying them the opportunity to commit further,
often serious crime.
— The ability to identify offenders
and their offending patterns, (eg Fourniret), who commit serious
crime in one country and who later move to and continue to commit
crime in another country (the SIS can also be used to identify
the arrival of certain offenders before they reoffend).
— The timely creation of full and accurate
conviction information on PNC and other national databases, such
as the Violent and Sex Offenders' Register (ViSOR), in support
of policing purposes.
— When investigating terrorism and
organised crime the police can make greater use of intelligence
markers to trace and monitor suspects.
— Employment disclosure will be more
effective due to the increase in numbers of records being added
or updated on PNC.
— Strategies to create full and accurate
records of offending will support the Criminal Justice IT exchange
development programme.
— Data sharing across Government for
the purposes of national security vetting.
The UKCA-ECR inherited a total of 27,529 documents
from the UKCA for Mutual Legal Assistance in the Home Office,
including foreign conviction notifications received from Ministries
of Justice in 15 countries, most of which are in the EU.
They contained details of 25 UK nationals convicted
abroad of rape, three of attempted rape, a further 46 convicted
of sexual abuse (29 on children). There were also foreign convictions
for five murders, nine attempted murders, 13 manslaughters and
29 robberies. The majority of these serious foreign convictions
of UK nationals were not on the PNC and we have no DNA, fingerprints
or photographs.
None of the 25 UK nationals convicted of rape
had been made subject of the Sex Offender Register. If these particular
offenders had been subject of checks for employment through the
CRB the search would have returned a "no trace". Arrangements
have been made to have a list of 525 serious offenders, checked
against the CRB system, to establish if any have applied for employment
within the UK.
There is an opportunity to assist the Immigration
and Nationality Directorate in establishing the true credentials
and background of foreign nationals. Many fraudulently claim to
be from the EU, while others use forged or stolen documents.
However there is a downside. Previously, a force
was able to request through Interpol (police to police) details
of convictions, offences and fingerprints. The new agreement is
with all EU "Criminal Record Offices" which are mostly
aligned to the court rather than police. In effect these foreign
record offices only hold court results and do not have access
or an effective liaison with the police, who will hold the background
case file and any biometric information. In effect the UKCA-ECR
can obtain results from criminal records checks in record time
but must advise the officers that any further details must be
obtained from police sources, which historically takes time. This
shortcoming needs addressing.
A more serious problem has arisen with regard
to UK nationals convicted within the EU. Whilst this new agreement
will ensure that such convictions are transmitted to the UK within
weeks of the conviction, only the bare details of the offender
are received, ie name, date and place of birth. The important
identification material is not sent with the notification because
the record offices within the EU do not have access to this data.
We are faced with the situation where for example,
a UK national, who is not previously known to the UK Police, is
convicted in Germany of rape, sentenced to seven years imprisonment
and the UK is simply sent his name, date and place of birth. The
essential material for identification, that is fingerprints, photograph
and DNA are not available, as they are held by the Police and
not the Criminal Record Office.
If the UK Police service requires these to aid
identification, they must apply through Interpol and each request
will be considered on a case by case basis. This will apply for
all EU Countries.
If we are to take conviction of UK nationals
abroad and place them on PNC, to be available to Police, CPS and
the Courts, then we need to confirm who the conviction relates
to and that can only be done with certainty by using the biometrics
obtain by the Police abroad at the time of arrest/charge.
The UK currently does send certain convictions
abroad, for foreign nationals convicted within the UK, together
with a set of the offenders' fingerprints. The EU needs an agreement,
that a conviction sent to the UK from within the EU, will be accompanied
by at least fingerprints and a photograph. Otherwise the offender
can and will allege in a future UK court case, "That was
not me".
COOPERATION THROUGH
BILATERAL OR
NON-FRAMEWORK
ARRANGEMENTS
The background
In the past trans-frontier police cooperation
was typically driven by sheer (operational) necessity.[3]
Until the 1990s, the majority of trans-frontier police cooperation
had developed little beyond an informal basis. Formal structures
have been welcomed with the potential for bringing stability and
effort against organised trans-frontier crime and the ability
to deal more effectively with all other aspects of policing in
border areas.
In general terms for UK law enforcement agencies,
the gateway to EU level cooperation is through SOCA. SOCA provides
coordinated access to Schengen, Europol and Interpol. On a day
to day basis however, in the relationships between Dover and Calais,
Cheriton and Coquelles, Newhaven and Dieppe, there is a need for
ground level contact. Quite rightly, SOCA has no direct oversight
of that contact. There is a mature reporting system for ensuring
that SOCA is informed when an incident which concerns more than
the immediate locality or issue. Again the key points are providing
a usable framework and ensuring that it is used in a disciplined
fashion.
Typical of the evolution of good cooperation
in a recognised border region is the Cross Channel Intelligence
Conference (CCIC). Cooperation is based on both bi-lateral and
multilateral localised agreements between the various police services
and, in some cases, governmental representatives in the respective
regions.
Examples of good practice are:
— The Cross Channel Intelligence Conference.
Formed initially in 1968. Membership derives from police forces
in coastal regions of The Netherlands, Belgium, France, and England
(Hampshire, Sussex, Kent, Essex, Suffolk). Also there is membership
from some central services of member states and Europol.
The CCIC now works at four levels:
Sub-Groups on intelligence, counter-terrorism,
illegal immigration, human trafficking, policing at ports, communications.
— Joint Initiatives between the Preéfet
of the Pas-de-Calais and the Chief Constable of Kent Police. Agreed
in June 2004, this initiative agrees the practice of daily trans-frontier
cooperation. It enshrines the recognition by the Préfet
and the Chief Constable of Kent that there are clear benefits
to be derived from:
1. developing co-operation between
their services to improve levels of arrest and prosecution of
British offenders and criminal networks in the Pas-de-Calais and
French offenders and criminal networks in Kent.
2. improving the exchange of intelligence
between services by developing local contacts and by information
exchange on a regular basis.
3. putting in place concrete tools
for daily cooperation, such as bilingual crime report forms and
the LinguaNet secure communications system which translates information
reports.
Police services within the CCIC Region have
been encouraged by the EU initiative to improve the processes
of the exchange of intelligence in trans-frontier areas. This
framework is long-awaited.
Stabilising "failing" states
For four years UK police officers have taken
part in the European Commission funded exercise in St Astier,
France. The exercise provides the only large scale test of joint
policing and command for a policing mission in the scenario of
an unstable failing state. Given the crime generation potential
of failed states the exercise gives a valuable insight into the
capabilities of a multinational unit.
Lessons learned
In October 2006, in Rouen, there was a joint
debrief of the urban violence experienced in Paris and other French
cities. There are common themes within social unrest. This exercise
displayed the maturity of the relationship between ACPO, Centrex
and the Police and Gendarmerie staff in the French Embassy, London.
TISPOL
Tispol, the European traffic police network,
currently has 25 member states mainly from within the EU but non-EU
members are also permitted, Switzerland, Norway and Moldova being
examples.
Major management functions are carried out by
the Executive (Presidency—Belgium 2006-07) which includes
UK, France, Germany, Spain, Norway, Finland, Switzerland and the
Netherlands.
Each country has a member on the TISPOL Council
and also on the Operations Group members of which arrange and
manage the campaign calendar which includes operations on trucks,
buses, speed, seat belts and alcohol & drugs.
There are separate working groups on speed,
seat belts and alcohol/drugs, tachographs and an intelligence
sub group.
Road safety is, by its very nature, international.
TISPOL has collaborated in clamping down on such dangerous incidents
as the Cannonball Run 2006, which flouted the laws across a number
of member states.
— UK Police worked with colleagues
across borders through TISPOL network.
— Stopped one Porsche and one Ferrari
speeding at 250 kph plus.
— The speed limit in France is 130
kph.
— Two drivers (both British) were arrested
by the Gendarmerie.
— Two drivers before the Court.
— Fined and a three-month (suspended)
jail sentence imposed.
— Cars (each of them €150,000)
were confiscated by the Court to be sold by auction.
— Lucerne Cantonal Police in Switzerland
stopped a 33 year old female British driver.
— Speed limit was 80 kph.
— Car taken and driver before court.
The European Commission consultation paper,
"Respecting the Rules—better road safety enforcement
in the EU" again highlights that frameworks for facilitating
cooperation and extending the reach of justice across national
boundaries are more effective than seeking harmonisation.
CONCLUSIONS
ACPO would wish to emphasise the following:
— In order to cooperate within an area
of freedom, security and justice it is not always necessary, or
desirable, to seek harmonisation of criminal law. Often, it needs
mutual recognition of legal systems and authorised agencies working
within a framework decision which can be implemented at national
level.
— The UK will need to review its policing
and criminal justice capacity to seek, draft, validate and disseminate
EAW's and provide resources to collect suspects arrested abroad.
— The UK's maintenance of borders and
controls brings a likelihood of a greater number of EAW arrests
than would be seen in another member state of comparable size.
ACPO, SOCA, CPS, the Home Office and Courts must address this
issue.
— The Home Office should continue to
support ACPO and SOCA, seeking to persuade the Council Legal Service
that UK access to SIS Article 96 data is proper and lawful.
— The Home Office should continue to
support ACPO and SOCA, pushing strongly for VIS access.
— The UK must press for early adoption
of SISII at EU level and support the Commission and member states
in the earliest possible activation with the desired enhancements.
— The UK should look for the operational
advantages held within the Prüm treaty.
— It is foreseeable that central bureaux
will not be able to handle the traffic in real-time requests for
information. Nor is it perhaps desirable that they should attempt
it. What is required is a framework to permit the lawful exchange
of information, in a transparent fashion, providing guidance and
protection to officers and citizens alike.
— The UKCA-ECR can obtain results from
criminal records checks in record time but must advise the officers
that any further details must be obtained from police sources,
which historically takes time. This shortcoming needs addressing.
— The EU needs an agreement, that a
conviction sent to the UK from within the EU, will be accompanied
by at least fingerprints and a photograph.
Detective Inspector Ben Snuggs
23 November 2006
1 In 2003 Michel Fourniret, 63, was arrested by the
Belgian Police for the murder of six French and one Belgian girl.
He had previously been sentenced in France to seven years imprisonment
for rape and indecent assault on minors in France. The Belgian
authorities were unaware of his previous convictions. It is thought
that he may have murdered up to 40 victims. Back
2
Francisco Montes, 55, was convicted of the murder in France of
Caroline Dickinson, in 2004. He had previously been arrested for
numerous sex offences in Germany and Spain. Back
3
However, some inter-governmental arrangements have been pivotal
in the improvement of trans-frontier police cooperation; ie Sangatte
Protocol, Le Touquet Protocol and various conventions on Mutual
Legal Assistance. Back
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