Select Committee on Home Affairs Written Evidence

4.  Memorandum submitted by Eurojust


(a)   What benefits have accrued so far from practical co-operation between law enforcement and judicial authorities? What are the lessons of practical co-operation for European policy and legislation, and how effective is Eurojust in spreading best practice?

  A(a)  The European Union currently has 27 Member States, each with its own criminal justice system. With the distinct legal systems of England and Wales, Scotland, Northern Ireland and Gibraltar the EU justice environment includes 30 different legal systems where the investigation and prosecution of crimes remain a national responsibility. The increasing number of cross border criminal cases over the past 10 years has required those responsible for investigation and prosecution within these systems to work together to ensure that criminals operating trans-nationally are investigated and prosecuted effectively and that the proceeds of their crimes are confiscated. Eurojust's Annual Reports, published each year since the organisation came into existence in 2002, give specific examples of cases where it has facilitated practical co-operation and effective co-ordination between the investigating and prosecuting authorities in the member states. Case referrals to Eurojust have increased by at least 25% each year since 2002. About 200 cases were referred to Eurojust in 2002 and in 2006 the figure increased to over 770. Co-ordination of these cases has resulted in a series of linked arrests, the disruption of transborder criminal networks and provision of assistance in cases which otherwise were unlikely to have been resolved effectively or at all.

  Since its establishment Eurojust has regularly brought together practitioners dealing with specialized areas of cross border crime in each of the EU's distinct legal systems and in a variety of roles, including police officers, customs officers, investigating judges, magistrates and prosecutors. Building trust and confidence across the contrasting legal systems in the EU is a key part of arranging effective co-operation where the powers, names, methods, rules, procedures and systems themselves are often hugely different. Linguistic barriers can also hamper effective co-operation. Our multilingual team and interpretation facilities help practitioners counter this difficulty. We have held meetings for specialist investigators and prosecutors on terrorism, drug trafficking, human trafficking and illegal immigration, fraud and money laundering, and VAT Carousel fraud. We also hold regular meetings with investigators and prosecutors to exchange information in individual cases, to prepare formal requests for assistance in obtaining evidence and to arrange co-ordinated action in several member states, for example to search premises, to freeze bank accounts or assets, to make arrests etc.

  Delegates attending these meetings often share their methodology and approach. There are undoubtedly benefits gained in such open attitudes. However circulating best practice is not often practicable as the different legal systems can require completely different approaches. [While practices from other member states can be interesting they cannot always be implemented or introduced into other legal systems.] Nonetheless Eurojust [accepts] that in the future, after delivering on its core business of improving the effectiveness of co-operation and co-ordination, seeking to identify and promulgate useful ideas and practices could be beneficial for practitioners in all member states.

  As part of the exchange of information and ideas Eurojust has hosted a series of meetings following significant cases. For example issues around the Madrid terrorist bombings in 2004 were explained to specialist terrorism prosecutors and investigators from across Europe who attended a presentation made by the Spanish investigating judge leading that enquiry. Similar presentations were made by the Head of the Anti-Terrorist Branch from New Scotland Yard following the London bombings in 2005 and after the arrests made in England in 2006.

(b)   In which areas does the UK government want to advance more practical co-operation measures? What benefits does the government see from practical co-operation over legislative solutions?

  A(b)  These questions are for the UK government.

(c)   What should be the role of Europol, Interpol and Eurojust in facilitating practical co-operation?

  A(c)  Europol and Eurojust should work closely together to facilitate the action of the law enforcement, prosecutorial and judicial authorities in the member states, and elsewhere, to help them deal effectively with serious cross border crime. Europol and Eurojust should help to bring together the police and legal authorities in the member states so that all available information is available for Europol to analyse and to use and so that Eurojust can, if needed, use its powers to request national authorities in member states to investigate and/or prosecute, to co-ordinate activity, to work in Joint Investigation Teams, and otherwise act when they are reluctant to do so.

  Close co-operation between Eurojust and Europol in the EU arena is vital to ensure all investigators and prosecutors are able to draw on the synergies from both organisations. A formal co-operation agreement between Eurojust and Europol was signed in June 2004 to provide a framework for this essential collaboration. The implementation of this agreement should be reviewed [with a view to improvement] in the next 18 months.

  The national desks within both organisations work closely together. The United Kingdom's teams at Eurojust and Europol were the first amongst all member states to sign a memorandum of understanding to develop closer and more practical working arrangements. This example has been followed by a number of other member states. In the future Eurojust and Europol should be located, if not in the same premises, in close proximity to each other in The Hague.


In which areas is mutual recognition currently employed (for example recognition of judicial judgements in other member states)?

  A.  The European Commission or the Council Secretariat will be able to supply up to date information on this subject but we understand that there are currently four Mutual Recognition instruments in force in the EU. They are the European Arrest Warrant (EAW), agreed in July 2002; Freezing Orders for Property and Evidence, agreed in August 2003; Recognition of Financial Penalties, agreed in February 2005; Confiscation Orders agreed in October 2006.

  Again the Commission or Council Secretariat will confirm but we understand that a range of other mutual recognition instruments are currently being considered for proposal or under negotiation including:

    —  Taking into account convictions in new proceedings.

    —  Sentences imposed involving deprivation of liberty.

    —  Procedural rights.

    —  The European Evidence Warrant (EEW).

    —  Financial penalties on road traffic cases.

    —  Common disqualification measures.

    —  Making disqualification effective throughout the EU.

    —  Settlement of conflicts of jurisdiction.

    —  Recognition of non-custodial pre-sentencing measures.

How has the principle, including minimum standards and protocols, worked in these areas? Is it an effective approach, including in terms of cost?

  Each Mutual Recognition instrument is introduced by a Framework Decision of the Council. At present such decisions can only be reached by unanimity. Once a Framework Decision is reached then it has to be implemented in the national legislation of each of the EU member states. The quality of implementation is a key factor in operational effectiveness and the extent to which the co-operation envisaged under the framework decision can be delivered in practice. The European Arrest Warrant has been extremely successful during the time it has been in existence although its practical operation in some member states has not been with out problems. The surrender of Mr Osman from Italy to England in a case relating to the terrorist allegations in July 2005 is a high profile example of the successful operation of the EAW.

What are the limitations of mutual recognition as a cornerstone of co-operation, for example in cases such as the European Arrest Warrant where there are controversies over dual criminality? What have been the successes, and how might these be built on?

  A.  The manner of implementation of a framework decision in the national law of member states is one of the factors which can limit effectiveness. Inconsistent implementation means that co-operation or co-ordination based on these instruments may not be so quick, or so effective, as when the implementation has been consistent with the commitment agreed in the framework decision. It is a natural development to consider linking key milestones in the criminal justice process and asking that those milestones: acts or decisions, be recognised in other states. Movement between these milestones in each system will be disparate, given the procedures and powers required to progress an investigation, including arrest, prosecution, trial and sentencing, and the fact that these have been defined over centuries in each of the different systems based on different national, social and legal cultures. These are limiting factors.

  The deadlines for action and surrender introduced by the EAW have been very effective in reducing the time taken for suspects to be surrendered to requesting states. The implementation and effectiveness of the mutual recognition instruments should be evaluated and action should be taken to improve their effectiveness.

What is the UK government's position on mutual recognition as opposed to practical co-operation?

  A.  This question is for the UK government.

  The current state of progress in and appetite for harmonising criminal justice systems across the EU, and whether further steps in this direction are desirable. How do proposals for harmonisation of criminal law across member states substantially differ from mutual recognition?

  A.  Harmonisation seeks to introduce changes which bring the practices and procedures in different legal systems, and so the legal systems themselves, closer to one another. For example setting parameters for sentencing. Mutual recognition builds on key parts of the legal process: for example actions or decisions; which are acknowledged, recognised and where necessary acted upon by those operating in another legal systems.

What are the implications for the UK in harmonising criminal law and systems?

  A.  Harmonisation would bring more consistency within legal systems but depending on the type and extent of harmonisation which is negotiated may impinge upon some of the principles and structures of the United Kingdom's common law systems. Harmonisation would in theory also help to ease co-operation and co-ordination; in practice it is likely that even with a good deal of harmonisation, they will not become sufficiently compatible to remove all the problems encountered when seeking rapid and effective co-operation.

Would particular areas benefit from harmonisation on issues such as migration, serious crime cases and terrorism, rather than practical co-operation or mutual recognition?

  A.  A combination of harmonisation in specific crime type areas with better practical co-operation and improved mutual recognition would add further benefits for co-operation and co-ordination.


What implications might use of the passerelle have for the UK's legal and judicial systems? What alternative action might improve decision-making? How can transparency and accountability at European level best be extended?

  A.  The "passerelle" could be a useful mechanism to improve action and accountability in judicial co-operation in criminal matters; it could have a number of potentially beneficial effects:

    —  Facilitation and acceleration of decision-making in the Council, through the use of qualified majority voting, putting an end to the frequent deadlocks associated with decision-taking in criminal matters.

    —  An increased level of harmonisation in the areas transferred in the first pillar. With qualified majority voting, perhaps the differences in the Member States' legal systems will no longer need to be taken extensively into account in order to reach a compromise and so an agreement.

    —  An increased role for the European Parliament to be a co-decision maker, with the application of co-decision, will respond to the European citizens' criticism about the lack of involvement of the European Parliament and the lack of accountability and scrutiny in the third pillar.

    —  An enhanced role for the ECJ, by use of "enforcement action", which is not currently available under the third pillar, and which could prove crucial for the systematic enforcement of the instruments adopted in these areas.

  On the other hand using the "passerelle" would, immediately or ultimately, have far reaching consequences for the Member States, such as:

    —  A loss of their right to propose the adoption of measures as this right would be given exclusively to the Commission.

    —  In case of application of qualified majority voting within the Council, a loss of the Member States' current "veto rights" in these areas.

  The effects of passarelle on decision making for the UK might be an obligation to legislate to implement a Council Decision which might be very difficult to incorporate into UK law or which might be at odds with common law principles.

  However one of the key success factors in relation to any third pillar decision making is not so much the speed at which the decision is reached but rather, its operational effectiveness which relies on the quality of the implementation of a Council Decision into the national law of each member state. Where the decision has been reached by unanimity there should be few problems and few inconsistencies in implementation. In practice, even with unanimous decision making, implementation is not always consistent. However if decisions are to be made by qualified majority voting, one wonders if the quality and consistency of the implementation in national law will be so good in those member states who were in the minority when such decisions are made.

  Given that judicial co-operation in criminal matters remains a sensitive area for Member States it is doubtful whether they will be ready to give up their right to propose the adoption of measures and to renounce their veto right. Some Member States have already manifested strong opposition to the use of the "passerelle" which shows the political sensitivity of this issue. Consequently it will be difficult to reach the required unanimity for the use of Article 42 TEU.

4.   How significant is the recent trend towards internal agreements between groups of member states outside the framework of the EU, for instance the Schengen countries, or the Prüm convention? To what extent is this due to unanimity or difficulties in decision making? What are the implications for the UK and for EU fragmentation?

  A4.  It is perhaps inevitable that in a structure of 27 countries and 30 different legal systems in diverse member states issues of mutual importance can be, and will be addressed in smaller groups of countries whose common regions, frontiers, cultures, problems or objectives are linked. In the justice field, as a state with a common law legal system, the UK is already operating legal systems which are very different from over 20 other EU states. Such arrangements are likely to allow better and more efficient co-operation between these groups of states; in some ways it may be a fast track approach. One implication for the UK of further fragmentation is that the UK investigating and prosecuting authorities will have to work hard to build practical co-operation relationships with those states either individually or collectively. However such arrangements could be seen as advantageous as they could operate as "pilot" arrangements which could easily be embraced, adapted or adopted by other states when they have been operating in practice and when initial issues and problems have been resolved. There have been such agreements and regional structures in the past for example within the Nordic States in Scandinavia; when special "Nordic only" mutual legal assistance arrangements were in place.

5.   What are the current developments in the area of common border controls and visa arrangements? What implications does the proposed new policy on illegal migration have for the UK and our role in the EU? Will the proposed changes to the short-stay visa arrangements in relation to the eastern neighbours of the EU open up new channels for illegal migration further westward in the EU? What are the implications of enlargement for JHA issues, including the impact of labour migration and confidence in new member states' justice systems?

  A5.  This question raises issues which are outside the competence and experience of Eurojust and consequently we feel it would be inappropriate respond.

Michael Kennedy

President of the College

17 January 2007

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