Memorandum submitted by Mr Mike Kennedy
of the Crown Prosecution Service
Question 1: What is the nature of the relationship
between Eurojust and the European Judicial network? Is there a
need for a closer relationship between Eurojust and the European
Judicial network? If so, how might this be brought about?
Question 2: Where does any confusion in responsibilities
between Eurojust and the European Judicial network currently arise?
How should these areas be clarified? Does the European Judicial
network have sufficient capacity to take on less complex cases?
If I may I should like to address these related
questions together.
The European Judicial Network (EJN) was established
in 1998 by a Joint Action of EU member states. It is an informal
network of prosecutors and judicial investigators nominated by
the member states who have experience in Mutual Legal Assistance
(MLA) and/or extradition within their own legal systems. The members
of the EJN are known as contact points (CPs) and are based in
the own home states and most have some responsibility for MLA.
All member states have appointed CPs some on the basis of their
function and individual responsibilities of the role they have
in their state in MLA matters. Others (eg France and Italy) have
appointed on a regional basis with one CP for each geographical
or administrative area. The UK has 12-15 CPs but others have appointed
more. For example Italy has over 50 CPs.
A number of associate CPs have also been appointed
from neighbouring or linked non-EU states with whom EU states
do MLA business regularly. These include CPs from Switzerland,
Norway, Turkey, Croatia, FYROM, and other Balkan states.
A number of the CPs, usually one from each member
state, meet four times each year. Prior to the Lisbon Treaty there
were usually two such business meetings each year both held in
Brussels one under each six monthly EU Presidency. Additionally
the EU state holding the Presidency would host an EJN training
conference attended by two or three CPs from each member state.
There would be training focus to these meetings dealing typically
with developments in EU Justice and Home Affairs issues; with
MLA problems; and, explanations of the mechanics of how the host
states criminal system works.
These conferences were also networking opportunities
to help build trust and confidence amongst the CPs that is a vital
ingredient for the successful operation of such a network.
The EJN has developed a very useful website
which is accessible to anyone and which also has a restricted
area for members only. The website lists all CPs with their function,
telephone, fax, email and postal addresses. It also lists the
languages in which the CPs profess to be able to work.
The website is one of the great strengths of
the EJN as it contains a range of practical aids and tools. These
include:
(i) The "Fiches Belges", literally
the "Belgian files", which are detailed explanatory
answers to questions about each member states' criminal justice
MLA and extradition systems. They are extremely useful and provide
for example details of requirements for a search warrant to be
issued and how criminal assets may be frozen confiscated etc.
(ii) The "Atlas", a tool that enables
the user to identify the locally competent authority to which
a request for mutual legal assistance can be sent, according to
the legal measure requested. This provides prosecutors in the
UK with a fast and efficient channel for the direct transmission
of their requests.
(iii) The "Contact Points", enables
UK practitioners, either directly or via the UK contact points,
to email counterparts throughout the EU for advice on mutual legal
assistance; a simply and quick way to get expert guidance on the
law and procedures in other Member States.
(iv) The website also has a facility to enable
the CPs to open debates and exchange ideas and thoughts with each
other through a discussion board.
The EJN has a small secretariat which comprises
a Secretary General, who is an experienced prosecutor, a webmaster
whose role is to maintain, improve and develop the website and
one or two support staff.
The relationship between Eurojust and the EJN
is close and they are often referred as "privileged partners".
The Council Decision of 2002 which established Eurojust stipulated
that the EJN Secretariat should be located in the Eurojust administration.
The EJN has a funding stream drawn from the Eurojust budget. The
relationship between the two organisations is positive. Many Eurojust
national members have served as EJN contact points. Eurojust nominates
two or three national members to attend each of the EJN's training
conferences.
Many cases are referred to Eurojust because
they cannot be resolved by the EJN. The concept is that the EJN
should be used for the straightforward bilateral cases requiring
simple information, whilst Eurojust should be used for the more
complex multi lateral cases where co-ordination is required by
investigation and prosecution authorities in several member states
and in cases involving countries outside the EU. Eurojust has
a range of agreements with non-EU states which permit the exchange
of personal data in compliance with the EU data protection regime.
This distinction of EJN for bilateral cases
and Eurojust for the complex multi lateral co-ordination cases
is a desire and not something that is set out legislatively in
mandatory form. The EJN works well in many member states but not
always efficiently or consistently across all the member states
of the whole EU.
The essential difference is the EJN is an informal
non accountable network with minimal resources which relies on
the commitment, goodwill and time of its contact points. By contrast
the national members of Eurojust form a permanent network located
in one place and with ready access to each other and the capacity
to provide answers quickly and where necessary offer secure meetings,
either face to face or by video conference link, with translation
facilities for up to seven languages. The permanent availability
of a prosecutor at Eurojust in The Hague now mandated by the Eurojust
Decision of December 2008 means that prosecutors have immediate
access to advice and assistance through their national member
who in turn has access to his/her 26 colleagues and indeed also
to the prosecutors from USA and Norway who have appointed representatives
to be based at Eurojust.
For many, and especially the smaller countries,
whose proportionate investment in locating a permanent Eurojust
national member in the Hague is significant, the immediacy of
response and certainty of access to others tends to mean that
Eurojust is the first port of call for answers even in the simple
bilateral cases. This will be all the more likely when experience
of the EJN route has not been positive.
Very few of the EJN CPs are employed full time
in MLA matters. Most are prosecutors or investigating judges dealing
with domestic cases in their national courts. For many MLA is
not a priority and often the fact that handling MLA issues are
not personal performance measures or an objective, means that
MLA is not always treated as a priority.
There are sometimes availability issues with
CPs and on occasion the level of linguistic expertise is not sufficient
to resolve issues effectively.
There is a standing team of Eurojust national
members and nominated CPs from the EJN are constantly looking
at ways of improving co-operation and collaboration and providing
a better service to investigators and prosecutors in the EU.
Question 3: The Law Society has suggested
that there is a need for the consolidation of mutual recognition
instruments. Do you agree? If so, please can you give us some
examples which illustrate where the differences between them require
clarification or consolidation?
Obtaining evidence from other EU states is principally
undertaken via the issue of letters of request pursuant to the
Crime (International Cooperation) Act 2003. Within the EU, two
distinct mechanisms enable this process to occur, Mutual Legal
Assistance (MLA) and mutual recognition tools.
The principal MLA tool is the EU Convention
on Mutual Assistance in Criminal Matters of 29 May 2000. To date,
the convention has been ratified by 24 Member States. The convention
supplements the Council of Europe's European Convention on Mutual
Assistance in Criminal Matters of 1959, which all 27 EU Member
States have ratified (in addition to other members of the Council
of Europe). CPS letters of request to Member States are issued
in reliance on these conventions.
Mutual recognition tools have been introduced
via framework decisions. The most effective mutual recognition
tool introduced has been the European Arrest Warrant, greatly
simplifying and speeding up extradition within the EU since its
introduction in January 2004.
To be effective, any reform of these tools must
consider both the MLA and mutual recognition routes. I would welcome
the introduction of a new single instrument in principle that
addressed both MLA and mutual recognition, as one instrument would
make the obtaining of evidence from another EU state less confusing
for prosecutors and ensure consistency across the EU.
For example, the recently adopted mutual recognition
tool, the European Evidence Warrant (EEW) which is due for implementation
in January 2011, is limited to a request for pre-existing evidence
only. As such, once implemented, a prosecutor who issues an EEW
will often also have to issue a letter of request in order to
obtain new evidence, eg to take witness statements. As such, prosecutors
may simply decide to issue a letter of request to obtain all the
evidence. It is clear that the effectiveness of the EEW will be
greatly diminished due to its limited scope and overlap with the
current MLA mechanism.
Similarly, via mutual recognition, in the UK
a police officer can apply to the court to obtain a freezing order
to preserve evidence overseas; however, such an application is
dependant on a letter of request having already been issued or
if a letter of request `is about to be issued'. Given that requirement,
UK officers may prefer to request that CPS issue a letter of request
straight away. Although the obligations on Member States to preserve
evidence is enhanced in the mutual recognition route, once again,
overlap of mutual recognition and MLA mechanisms leads to confusion
amongst practitioners on the best route to take.
Other examples of mutual recognition have simply
been implemented poorly, ie late or not at all, and merely in
part. In a communication to the European Parliament and Council
on 20 November 2008 the Commission noted with regard to framework
decisions within the context of "Proceeds of Organised Crime",
ie relating to restraint, confiscation, freezing of evidence and
assets: "In conclusion, the existing legal texts are only
partially transposed. Some provisions of the Framework Decisions
are not very clear with the result that transposition into national
legislation is patchy."
As such, consolidation and simplification of
the current MLA and mutual recognition routes, applicable to all
forms of evidence, would be of benefit to practitioners, and would
also make the processes involved easier to understand for all
participants in the criminal justice field.
The success of single unifying instrument however
would largely depend on its construction and scope.
Such an instrument must acknowledge that certain
forms of cooperation are best regulated via MLA rather than mutual
recognition, for example JITs and covert investigations. Additionally
it would be necessary to include specific rules for some types
of evidence such as interception of communications.
It is important that any new instrument should
retain the elements from the current instruments that are proven
to work effectively and overcome the problems experienced by practitioners
with the existing instruments. Legal remedies should be available
for the interested parties in accordance with national law. I
would also hope that in respecting different legal systems, any
new instrument allows for a request to be refused by a central
authority as an alternative to a court or prosecutor and that
proportionality is incorporated as a ground for refusal.
Question 5: Could you elaborate on some of
the ways in which Eurojust could work more effectively with OLAF
and Europol?
I will consider how Eurojust could work more
effectively with Europol first and then move onto OLAF.
EUROJUST-EUROPOL
A legal agreement was signed by Eurojust and
Europol in October 2009 and came into force on 1 January 2010.
The Agreement aims to strengthen both strategic
and operational co-operation by, amongst other things: facilitating
information exchange, particularly in relation to Analysis Work
Files (AWFs); temporary exchange of staff; and mutual attendance
at casework meetings where appropriate. A joint taskforce has
been established to ensure that the provisions of the agreement
are fully implemented; however, to date there remain room for
improvement in some areas.
INFORMATION EXCHANGE
The September 2008 Memorandum of Understanding
on a table of equivalence between Eurojust and Europol provides
that classified information between Eurojust and Europol can only
be exchanged up to the level of "restricted". Measures
that allow for information exchange at a higher level of classification
could be undertaken with input from a joint working group.
In 2007 a secure communication link became operational
between Eurojust and Europol, but this does not currently cater
for purely bilateral exchange between a Eurojust national desk
and a Europol Liaison Bureau. Pragmatic use of the secure communication
link would help to ensure effective working. Co-ordination meetings
at Eurojust and Europol provide the basis for effective cross-border
action. Eurojust already provides information about its casework
meetings and about 30% of them have participation from Europol;
however, the relationship would benefit from a more comprehensive
approach to exchanging information on operational meetings.
AWFS
Europol analyses material on crime areas in
AWFs. Files have been opened on 20 crime areas, ranging from cocaine
trafficking to international terrorism. Eurojust is now associated
with 12 AWFs and provides the platform for co-ordinating "judicial
follow-up" of Europol's analyses. There have been many successes
from Europol analysis and Eurojust co-ordination of prosecutorial
action.
However, Eurojust is not yet associated with
terrorist related files and other AWFs of strategic importance
for the fight against serious crime. Eurojust and Europol should
jointly encourage Eurojust association in AWFs by: using provisions
in the Agreement which require a refusal of Eurojust association
to be reasoned; ensuring that Member States (MS) are aware of
Eurojust security practices; ensuring that MS are fully aware
of Eurojust's value from its co-ordination meetings; and by better
dissemination of joint reference documents such as the "Frequently
Asked Questions on AWFs".
In addition to the 2009 Agreement the implementation
of the Stockholm Programme will allow greater scope for effective
working between Eurojust and Europol. Eurojust regularly attends
the meetings of the Heads of Europol National Units (HENUs) and
the meetings of the European Police Chiefs Task Force (PCTF),
which are useful for sharing information at the EU level.
THE STOCKHOLM
PROGRAMME
The Stockholm Programme calls for the full implementation
of the new Eurojust Council Decision, which includes the establishment
of a Eurojust National Coordination System (ENCS) tasked with
maintaining close relations with the Europol National Unit. At
EU level, Eurojust should build on its participation in PCTF projects.
At national level the opportunity under the new Eurojust Decision
Article 12.5.d for involving Europol National Units in the ENCS
should be developed for early collaboration between law enforcement
officials and prosecutors.
Another priority in the Stockholm Programme
concerns the systematic cooperation between Eurojust and Europol
in Joint Investigation Teams (JITs). JITs allow investigators
and prosecutors from different MS to work together for mutual
benefit on cross-border cases. Eurojust and Europol already promote
JITs by maintaining a manual and guide for practitioners and by
hosting meetings of experts from Member States. However, Eurojust
could work more effectively with Europol on JITs by:
— Using the Secretariat of the Joint
Investigation Team Network to facilitate cooperation between law
enforcement and prosecution experts, with Europol support (to
be based at Eurojust per Eurojust Decision Art. 25a.2);
— Using the financial incentive to
involve Eurojust in JITs as a platform for Europol involvement
where appropriate (National Members must be invited to participate
in a JIT where community funding is provided per Eurojust decision
9f);
— Both Eurojust and Europol should
ensure that the obligation in the Agreement to share information
on JIT formation has operational effect; and
— Eurojust and Europol could collaborate
in bringing their experience to the revision of the Model JIT
Agreement proposed in the Stockholm Programme.
Eurojust and Europol collaborated to produce
a manual on JITs and a guide to the legislation on JITs for practitioners.
This type of joint production should be extended to other cross
border topics, such as the law and practice on controlled deliveries.
The Stockholm Programme also recognises the
need to develop the Organised Crime Threat Assessment (OCTA).
Eurojust contributes to Europol's OCTA report from findings based
on its casework; its perspective is focused on judicial issues
in the organised crime area. Eurojust could contribute more effectively
by analysing the problems of judicial cooperation in the various
priority areas and by analysis of judgements in EU organised crime
cases, as is currently done by Eurojust in its contribution to
the EU Terrorism Situation and Trend Report (TESAT). Eurojust
could also help to raise awareness of the OCTA priorities through
the provision of practitioner input and input to Council Conclusions
on the OCTA priorities.
EUROJUST-OLAF
For various reasons, practical cooperation between
OLAF and Eurojust has been limited, and clearly could be improved.
The main areas for co-operation are set out in the 2008 `Practical
Agreement on Arrangements of Cooperation between Eurojust and
OLAF', which replaces a 2003 memorandum of understanding. In essence,
the programme consists of: instituting a system of contact points
between the two organisations; exchanging case summaries on cases
involving fraud against the financial interests of the EU; exchanging
strategic and operational data; exchanging information about JITs;
allowing OLAF participation in Eurojust co-ordination meetings
when appropriate; and cooperation in training programmes. Effective
working between OLAF and Eurojust should be built upon the programme
set out Agreement.
Question 6: You ask if we can give an estimate
of the amount of criminal assets that could be seized from across
the EU member states if restraint and confiscation orders made
in the UK were properly enforced.
An International Asset Recovery subgroup of
the Asset Recovery Working Group, chaired by the National Policing
Improvement Agency, was set up in September 2009 to address the
lack of co-ordinated activity in respect of international asset
recovery. The subgroup is examining and enhancing the data currently
available on international asset recovery to provide accurate
data reporting to ARWG. This work is at an early stage and presently
there are no accurate criminal justice system or CPS figures for
the value of criminal assets overseas and their location by country
or region.
Recent analysis of Proceeds of Crime Unit confiscation
orders reveals that the total balance outstanding is £440.9
million of which £121.7 million relates to overseas assets.
Although it is not possible to say how much of the £121.7
million relates to assets in European MS (as we have not historically
captured this data) worldwide there are clearly significant assets
that could be realised if confiscation orders made in the UK were
fully enforced.
This is not for want of trying. Cases where
the offender has sent his assets overseas present their own problems.
This is because prosecutors are ultimately dependent on the authorities
in the countries concerned being willing to act to give effect
to the order. Whilst some jurisdictions are helpful, others are
not. Financially astute offenders know which jurisdictions fall
into each camp and move their money accordingly.
Mike Kennedy
Chief Operating Officer
3 March 2010
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