Documents considered by the Committee on 16 March 2011 - European Scrutiny Committee Contents

3 European Investigation Order



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Draft Directive on the European Investigation Order in criminal matters

Explanatory Memorandum

Legal baseArticle 82(1)(a) TFEU
DepartmentHome Office
Basis of considerationMinisters' letters of 15 December 2010 and 14 January 2011
Previous Committee ReportsHC 428-xi (2010-11), chapter 11 (15 December 2010); HC 428-i (2010-11), chapter 22 (8 September 2010)
To be discussed in CouncilJune
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested


3.1 The draft Directive is an initiative of Belgium, Bulgaria, Estonia, Spain, Austria, Slovenia and Sweden acting under Article 76(b) TFEU (under which a quarter or more of Member States can propose legislation in the field of judicial cooperation in criminal matters and police cooperation). Its objective is to create a single instrument, the European Investigation Order (EIO), for obtaining evidence located in another Member State in the framework of criminal proceedings. Currently judicial or law enforcement authorities have to use two different regimes: mutual legal assistance (MLA) on the one hand, and mutual recognition on the other. MLA is regulated by a number of legal instruments,[21] the most important of which is the 2000 EU MLA Convention, and may be used for all cases, irrespective of the type of investigative measure or the type of evidence concerned. Mutual recognition, on the other hand, is limited to areas covered by one of the two instruments currently adopted in the EU: the Framework Decision on the execution in the European Union of orders freezing property or evidence,[22] and the Framework Decision on the European evidence warrant (EEW) for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters.[23] The EEW has not yet come into force.

Previous scrutiny

3.2 We first reported on this important proposal on 8 September and then again on 15 December,[24] when we reported the letters of the Minister of State for Security and Counter-Terrorism at the Home Office (Baroness Neville-Jones) of 23 and 30 September. In our conclusion:

—  we noted that the Government shared many of the concerns we raised in our first Report on the grounds for refusal and the legal remedies in Articles 10 and 13, and has raised these concerns in negotiations. We asked for an update on this aspect of the negotiations;

—  we asked for an update on: whether the Commission will publish its impact assessment and what discussions there have been on the use of the Commission's impact assessment in the Council working group; the proposed legal base; the role of central authorities; whether a necessity and proportionality test has been included; and whether reference is now made in the draft Directive to the availability of EIOs to defendants;

—  the Minister stated in her letter of 30 September:

"I would say that the UK has found it very helpful to be able to be present at the execution of mutual legal assistance requests to help ensure that only relevant material is seized. Consequently, the Government's principal concern in this area is to ensure that foreign law officers being present in the UK have no law enforcement powers or ability to direct UK officers. We are aware of concerns that have been expressed in this regard and agree that this would be totally unacceptable. We are satisfied that the current draft does not do this and will seek to maintain that position."

In light of these comments we reiterated our concerns about the presence of investigators from the requesting State at investigations in the UK becoming a right under EU law, rather than remaining at the discretion of the executing State. If the informal system works satisfactorily at present, we did not understand the need to change it. We urged the Government to reconsider its position on this;

—  the Minister stated in her letter of 30 September that "Article 2 of the EIO makes it clear that only a judge, a court, an investigating magistrate, a public prosecutor or other judicial authority (as defined by the issuing State) can issue a request, which already ensures effective judicial oversight of the decision to issue a request." We did not agree that a decision by the CPS to issue a request could be considered "judicial oversight": we asked the Minister to specify exactly which authorities in the UK would be able to issue a request for an EIO and how judicial oversight of such a request would be achieved;

—  we asked again for the response of the CPS to this proposal;

—  finally, we asked to be kept informed of any changes to the timeframe of these negotiations. This is because we will in due course wish the Home Secretary to give evidence to us on this proposal and also recommend it for debate.

The Minister's letter of 15 December

3.3 The Parliamentary Under-Secretary of State for Crime Prevention (James Brokenshire) wrote on 15 December to update us on the negotiations. He said that the negotiations were proving to be complicated and time consuming, and it was proving very difficult to find a text to which all Member States agree. Only Articles 1-10 of the Directive had been discussed, the remaining Articles, recitals and the legal base had yet to be considered. When a new consolidated text was produced by the Presidency, this would be deposited with Parliament. While this would still be subject to further negotiation, in particular with the European Parliament, the Government was relatively confident that certain proposed amendments were likely to appear in the final text.

3.4 The scope of the EIO looked set to be as wide as possible with the one instrument covering most investigative measures. The UK was content with this because it would ensure a less fragmented and more practical system than the one that is currently in place.

3.5 The question of who may issue an EIO had also been discussed extensively. It was likely that there would be a validation procedure whereby anyone other than a court, judge or public prosecutor who wished to issue an EIO must have it validated by a judicial authority prior to transmission. In the case of no such validation an EIO would be able to be refused. This would not affect the UK as an EIO would only be issued by a court or public prosecutor. This was considered to be a further way of ensuring that requests are subject to adequate judicial control in the issuing State — something, the Minister comments, that can only help with proportionality.

3.6 The Minister said that the letter to us of 30 September explained the work the Government had done to ensure the EIO would respect the UK's common law system and allow UK central authorities to recognise an EIO. He reports that the Government was happy with the way the discussions surrounding central authorities were progressing and thought it likely that the new text would accommodate the UK's position.

3.7 On proportionality, the Presidency had proposed new text that requires the issuing State to ensure the issuing of an EIO is 'necessary and proportionate', and this was supported by the majority of Member States. This language goes further than that contained in the Framework Decision on the European Arrest Warrant; the Government welcomed it and believed it would help to stop the most trivial requests. The second part of the proposed text requires the issuing State to confirm that the requested evidence could have been obtained by their authorities had it been located domestically. This inclusion would guard against 'forum shopping' and the Government fully supported this.

3.8 There were likely to be individual provisions that address trivial cases and costs. The UK and Germany had issued a paper that addressed these issues and the Government was lobbying hard on this matter. These discussions were set to continue and it was too early in negotiations to tell what shape these provisions would take in the final document.

3.9 Agreement on grounds for refusal was unlikely to be resolved quickly; the Government expected further consideration of the issue under the Hungarian Presidency. The Belgian Presidency had proposed text for the inclusion of ne bis in idem, the double jeopardy rule, as a ground for refusal. This was to be welcomed. Further grounds for refusal that have been discussed were fundamental rights, territoriality, dual criminality and the role of national law in the execution of an EIO.

3.10 The Minister said it was important to ensure foreign officers would have no law enforcement powers within the UK. To this end there had been a proposal in the main text that explicitly states that authorities of the issuing State will have no law enforcement powers in the executing State. The Government welcomed this clarification.

The Minister's letter of 14 January

3.11 The Minister of State for Security and Counter-Terrorism at the Home Office (Baroness Neville-Jones) wrote on 14 January in reply to our Twelfth Report.[25] She said that a number of the issues raised in the Report were dealt with in the letter of 15 December from the Parliamentary Under-Secretary of State for Crime Prevention. These included the role of central authorities; proportionality; and grounds for refusal. She said there was no further update on these points. She gave the following responses to the remainder of the concerns we had raised.

3.12 Our Report asked whether the Commission intended to publish an impact assessment in this field. The Commission has not brought forward a legislative proposal on this or in relation to admissibility and has therefore not produced an impact assessment. Whilst the Government would not welcome a rival Commission proposal in the field of Mutual Legal Assistance, in such an event it would hope that an impact assessment would indeed be forthcoming to inform any future negotiations.

3.13 To date there has been no in-depth discussion in the negotiations on legal remedies or the proposed legal base. The Government expects this to take place early in the Hungarian Presidency.

3.14 She notes our concerns about the presence of foreign authorities in the UK, and assures us that the Government will continue to try to ensure that the EIO does not impose an excessive burden on the executing State, whether through disproportionate or unnecessary requests or unreasonable demands that officers attend the execution of requests.

3.15 The Report asked her to specify exactly which authorities in the UK would be able to issue a request for an EIO and how judicial oversight of such requests would be achieved. In accordance with the Crime and International Cooperation Act 2003 (CICA) any judge or Justice of the Peace (in England and Wales), any judge of the High Court or Sheriff (in Scotland), or any judge or resident magistrate (in Northern Ireland) will be able, on application made by a competent authority, to issue a request. Furthermore, section 7(5) of CICA provides that prosecuting authorities, designated by the Secretary of State, will be able to issue requests. These authorities are: Magistrates' Courts, Crown Courts and the High Court; the Director of Public Prosecutions and any Crown Prosecutor; District Courts, Sheriff Courts and the High Court of Justiciary; any Procurator Fiscal; the Director of Public Prosecutions in Northern Ireland; the Attorney General for England and Wales; the Director and any designated member of the Serious Fraud Office; the Secretary of State for Business, Innovation & Skills in respect of his function of investigating and prosecuting offences; the Lord Advocate; the Attorney General for Northern Ireland; the Commissioners of HM Revenue and Customs; and the Financial Services Authority.

3.16 All these authorities have the capacity to make legal (or judicial) decisions and therefore it is appropriate that the decision to issue an EIO, and its oversight, rest with such authorities. These authorities are currently responsible for issuing Mutual Legal Assistance requests in the UK and it is our view that the EIO should not place any further obstacles in the way of such requests being made.

3.17 Our Report asked for the response of the Crown Prosecution Service (CPS) to the consultation on the EIO. Home Office officials consulted the CPS International Division throughout the opt-in process. The CPS did not provide a single response but contributed to the consultation process in a range of ways, including attendance at meetings, providing a detailed analysis of the draft EIO published in April 2010, commenting on Home Office papers on the instrument and on successive drafts of the measure whilst under negotiation at Brussels. Prior to the opt-in decision the CPS view was that there would be clear operational benefits to the UK opting into the EIO and consequently they supported the decision to opt in. But, in doing so, they took the view that there needed to be a proportionality test and reasonable deadlines for transmission of evidence. They noted that although there were clear benefits in having deadlines for outgoing requests this would need to be balanced against the pressures they would place on the executing agencies in the UK with regard to incoming requests. The Home Secretary's Statement to the House on 27 July 2010 makes it clear that the Government agrees with this position. As outlined in the Minister of State for Security and Counter-Terrorism at the Home Office's letter of 15 December 2010, progress has been made on proportionality. There has recently been an orientation discussion on Articles 11 to 18, which include deadlines, but these have not yet been discussed in any detail in the negotiations themselves. Home Office officials continue to work closely with officials from the CPS to keep them updated on negotiations and to discuss possible amendments.

3.18 Lastly, she noted that we plan to ask the Home Secretary to give evidence to us on this proposal and to recommend it for debate. She undertakes to keep us updated on the progress of the negotiations, including any changes to the timeframe. As things stands, she agrees with the assessment that the Directive is unlikely to be adopted this year. However, the Hungarian Presidency has indicated that it hopes to get an overall approach agreed at the June JHA Council.


3.19 We thank both Ministers for their helpful letters and note their content. In sum, it seems that much is still to be resolved. We were told in the letter of 15 December that the Minister of State for Security and Counter-Terrorism at the Home Office would deposit a consolidated text of the draft Proposal when produced by the Presidency. We assume by now a consolidated draft has been produced, and we ask for the most recent version to be deposited, with a further Explanatory Memorandum. Without this it is difficult for us to gauge where negotiations stand — the version that has been deposited is dated 21 May 2010 — despite the helpful letters we have received.

3.20 We also note that the Presidency is aiming to get an "overall approach" agreed on this proposal in June, which is far shorter than the predicted timeframe for the negotiations. We ask the Minister to confirm whether an overall approach means final political agreement, as would be the case for a "general approach".

21   Council of Europe Convention on mutual assistance in criminal matters 1959, supplemented by its additional protocol of 1978 and the second additional protocol of 2001; the Benelux Treaty of 1962; the Schengen Implementing Convention of 1990; and the Convention on mutual assistance between the Member States of the EU of 2000. Many provisions of the 2000 Convention are similar to those of the second additional protocol of 2001 to the 1959 Convention, which some of the Member States also ratified, and the additional protocol from 2001. Bilateral Treaties also exist. Back

22   2003/577/JHA of 22 July 2003. Back

23   2008/978/JHA of 18 December 2008. Back

24   See headnote. Back

25   (31678)9288/10:HC428-xi(2010-11),chapter11(15December2010). Back

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Prepared 24 March 2011