3 European Investigation Order
| (31678)
9288/10
—
+ ADD 1
| Draft Directive on the European Investigation Order in criminal matters
Explanatory Memorandum
|
| Legal base | Article 82(1)(a) TFEU
|
| Department | Home Office
|
| Basis of consideration | Ministers' letters of 15 December 2010 and 14 January 2011
|
| Previous Committee Reports | HC 428-xi (2010-11), chapter 11 (15 December 2010); HC 428-i (2010-11), chapter 22 (8 September 2010)
|
| To be discussed in Council | June
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | Not cleared; further information requested
|
Background
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.
Conclusion
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
| 
