Documents considered by the Committee on 15 December 2010 - European Scrutiny Committee Contents


11 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 considerationMinister's letters of 23 September 2010 and 30 September 2010
Previous Committee ReportHC 428-i (2010-11), chapter 22 (8 September 2010)
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested

Background

11.1 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,[54] 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,[55] 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.[56] The EEW has not yet come into force.

Previous scrutiny

11.2 We first reported on this important proposal on 8 September,[57] when we concluded as follows:

    "To date we have only seen an explanatory memorandum from the Council, and would be grateful if the Minister could confirm that the obligations in Article 5 [of the Protocol on the application of the principles of subsidiarity and proportionality] above will be complied with and when we can expect to see the detailed statement.

    "We note that the Commission was in the process of undertaking an impact assessment on mutual legal assistance following the publication of its Green Paper last year, as instructed by the Council in the Stockholm Programme. But this appears to have been superseded by this Member State initiative. The Minister says at paragraph 26 of her Explanatory Memorandum of 25 May that, nonetheless, "the Commission is currently analysing the replies it has received and is continuing their work on a legislative proposal in spite of the introduction of this draft Directive". This strikes us as a deeply unfortunate situation: firstly because the Council and Commission should not be wasting resources issuing rival proposals on the same subject — we had thought the Treaty of Lisbon was supposed to put paid to turf warfare between the institutions in Brussels; secondly, the assessment being undertaken by the Commission is a pre-requisite to knowing whether and what type of legislation is necessary in this field, so unarguably it should form the basis of any legislative proposal, be it from a group of Member States or the Commission. We ask the Minister to update us urgently on this state of affairs.

    "We would be grateful for an update on discussions on the question of legal base and the role of central authorities.

    "We thank the Minister for sending us the comments of the Child On-line Exploitation Centre, the Metropolitan Police Service, the Law Society of England and Wales, Justice and Fair Trials International. We note that they have several concerns in common; we share many of them and have additional ones of our own. In sum we think that:

    ·  the grounds for refusing a request in Article 10 are too narrow. In our view they should include:

    ·  breach of fundamental rights in the executing State;

    ·  double jeopardy (the person being investigated has already been tried for the same offence);

    ·  a requirement of territoriality (so if the alleged offence was not committed in the issuing but in the executing State it could refused);

    ·  a requirement of dual criminality — for all EIOs, not just those requiring coercive measures (so preventing a Member State from being required to investigate conduct it does not itself treat as criminal);

    ·  the legal remedies should be spelt out in greater detail, as per Article 18 of the Framework Decision on the EEW;

    ·  the proposal should not give a right to the issuing authority to be present in the executing State when the investigative measure is carried out. If this happens informally already (as we are told in the Council's explanatory memorandum), we do not see a need for legislation. The fact that the drafters thought that the requesting authority should be present may also be a good indication of the lack of basic common standards in evidence-gathering and evidence-handling in Europe.

    "We would be grateful if the Minister would tell us whether she shares the concerns we have outlined in the bullet points above.

    "We would also be grateful to know the Minister's views on the comments of Justice that, in order to respect the right of a suspect to a fair trial, it is necessary for all EIO requests to be granted by a judicial authority, akin to prior Framework Decisions and the European Arrest Warrant in particular.

    "We note that the Law Society and Fair Trials International have said that an EIO should be available both to the prosecution and defence teams in criminal cases. This comment is prompted by their perceived need to ensure better equality of arms between prosecution and defence. We understand from the Home Secretary's statement to the House on 27 July that this is the case. We would be grateful if the Minister could explain how the EIO will in practice be available to defence lawyers.

    "We strongly support a proportionality test being incorporated in the proposal, and welcome the Home Secretary's confirmation that this will be the case. We think it should be clearly listed as a ground for refusal in Article 10.

    "We ask the Minister to submit the response of Association of Chief Police Officers, to which the Home Secretary referred, the Crown Prosecution Service, and any other organisations which have responded to the Government's consultation.

    "Finally, we ask the Minister to provide us with a timeframe for the conclusion of negotiations."

The Minister's letter of 23 September

11.3 The Minister of State for Security and Counter-Terrorism at the Home Office (Baroness Neville-Jones) wrote on 23 September, attaching briefing notes on the EIO sent to the Home Office by Fair Trials International and Justice. Both are appended to this Report.

11.4 In his covering letter to the Home Secretary, Jago Russell, Chief Executive of Fair Trials International, says that his organisation has major concerns about the ramifications of the EIO for police resources and civil liberties. He questions whether mutual recognition is the right model to use for investigations and evidence-gathering between countries with very different privacy protection and fair trial standards. He regrets that the Commission's consultation on a similar type of instrument has been sidelined by the Member State initiative, and that the Government took the decision to opt into the EIO without prior debate in Parliament or adequate scrutiny by the EU Scrutiny Committees. He says that "[the briefing note] also corrects the suggestion that the EIO would really change nothing, merely simplify and codify the existing regime for gathering evidence. The EIO in its current form would have more profound consequences than this."

11.5 The concerns of Justice can be summarised as follows: the submissions to the Commission's consultation process should not be ignored in the negotiations on the Member State initiative; the legal basis should be grounded in Article 82(1)(a) TFEU; since the instrument is intended to cover wide ranging evidence requests on a mutual recognition basis, judicial scrutiny at both the issuing and executing stage is imperative; a necessity and proportionality test is required, as in the EEW; grounds for non-recognition should encompass those set out in the EEW and include breach of fundamental rights; legal remedies cannot be effective unless a structure is provided in which representations can be made; data must be protected in accordance with Article 8 of the ECHR and Article 7 of the EU Charter, and the data protection Framework Decision should be referred to in the Directive.

The Minister's letter of 30 September

11.6 The Minister's second letter seeks to address each of the questions we raised in the conclusion of our first Report, as cited above. She encloses, at annex 1 to the letter, a "Working Document" from the UK and Germany on the Principle of Equivalence and the European Investigation Order; at annex 2 a UK "Room Document" on Mutual legal assistance in criminal matter [sic] and the common law system; at annex 3 the Council's Detailed Statement, for which we had asked; and at annex 4 the Council's Financial Statement.

11.7 Taking each of our concerns in turn, the Minister says that the Commission is still considering options for action in the areas of evidence and admissibility; however, it is also playing a constructive part in the EIO negotiations. Like the Committee, the Government hopes that it will not see any more Commission and Member State initiatives in the same area, and that the Commission will reflect on its next steps with this in mind.

11.8 As part of its ongoing work the Commission is preparing an impact assessment in relation to possible future legislation in this field. The Minister reports that UK experts have given evidence in relation to this via a telephone interview. If a full impact assessment is published by the Commission the Minister hopes that this should help inform the negotiations on the EIO. However, she reiterates that the Government does not support competing legislation in this area.

11.9 Thus far there has been no full discussion during negotiations of the legal basis for the EIO. However, the UK has made its preference for a legal base of Article 82(1)(d) clear and has asked for a debate on this important point at a future date. The Presidency has agreed to this. It is worth noting, the Minister says, that a joint legal base of Article 82(1)(a) and (d) would also be possible and some other countries appear inclined towards this view. However, at this stage there has been no full discussion on this topic and it is not possible to say with any certainty what the outcome of such a discussion will be.

11.10 There has been a great deal of discussion of the role of central authorities. Much of this discussion was brought about by a room document circulated by the UK, which the Minister attaches to her letter. At present, the Presidency has not produced an updated version of the text and the Government is hopeful that when they do so the text will recognise the role central authorities play in the UK. This is a point of great importance to the Government.

11.11 The Government will seek to ensure that a breach of fundamental rights in the executing State is included specifically as a ground for refusal in Article 10. This would, in the Government's view, help to build both public and practitioner confidence in the instrument. However, regardless of whether or not the reference to fundamental rights is included specifically within Article 10 or is maintained in Article 1(3), the Government is clear that any request for evidence that would breach an individual's fundamental rights would be refused. The Human Rights Act 1998 places an obligation on public bodies, including the Government, not to act in a manner incompatible with a person's human rights and the EIO would not, and could not, permit any deviation from this.

11.12 The Minister agrees that double jeopardy (ne bis in idem) should be a ground for refusal. The Presidency has recently proposed some wording on this matter and she believes it will be included in the next consolidated draft. She also notes the Committee's recommendation that territoriality is included as a discretionary ground of refusal, in much the same way as it is in the EEW. The Government is currently considering this issue will continue to review this as negotiations progress. However, she says that this has been raised at negotiations and, whilst there has not yet been a substantial discussion on the issue, she expects one to take place in the future.

11.13 The Government fully supports the position whereby any requests for coercive measures must satisfy a dual criminality test, and is also concerned about the issue of dual criminality more generally. This is why the UK and Germany issued a joint position paper on 17 September 2010 that directly addresses this issue. Again, she attaches this paper for our information. Together, the UK and Germany proposed an amendment to Article 10 to include 10(1)(d). This would allow a State to refuse a request whereby the use of the investigative measure requested would not be authorised in a similar domestic case. Clearly, this would provide the UK with discretion to refuse a request where dual criminality had not been established. The Government is also keen to spark debate more generally on the issue of dual criminality and the final section of the joint position paper with Germany should do so.

11.14 The Minister further agrees with our position that the Article on legal remedies should be more specific. The UK has prepared draft text in this regard and it is the Government's intention to submit this to the Presidency at the appropriate time. This is based on Article 18 of the EEW. The right to a legal remedy is an important point in terms of helping to protect civil liberties, which is a priority for this Government.

11.15 Our Report said that the proposal should not give a formal right to the issuing State's authorities to be present in the executing State when the EIO is executed on the grounds that this is already an informal practice. The Minister responds to this by explaining that there has been discussion on this point at the most recent round of negotiations and there has certainly been some concern expressed at the current drafting. She says 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. The Government is aware of concerns that have been expressed in this regard and agrees that this would be totally unacceptable. It is satisfied that the current draft does not do this and will seek to maintain that position.

11.16 Our Report also made reference to specific sections of the report by the civil liberties group Justice. The Minister's understanding of Justice's report is that they are seeking judicial oversight of the decision to issue a request. This is in order to ensure that the request is not a violation of a person's fundamental rights and that the evidence sought is both necessary and proportionate. Justice suggests Article 7 of the EEW is a good model for achieving this. The Government supports the inclusion of a similar test of the necessity and proportionality of the evidence requested being included in the issuing State. The Presidency has proposed draft text on this issue and the Minister hopes it will be included in the next consolidated draft text. It is also relevant in this regard to note 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. This would appear to be in line with what Justice wishes to see.

11.17 In addition to the proportionality clause above, the Government will also seek to ensure that an EIO cannot impose excessive, or disproportionate, financial or resource burdens on UK law enforcement agencies. The Government's joint paper with Germany addresses this issue directly and its proposed Articles 9 and 10 would allow for refusals in such cases. This is because the Government believes that at a time when we reducing domestic regulatory burdens on the police, it would be unacceptable to have them re-imposed by foreign authorities.

11.18 The Government is clear that the EIO can be used by both the prosecution and the defence. This position has been confirmed during negotiations but the Minister believes that it would be helpful for this to be referenced clearly in the final text. We asked how the defence would make use of the EIO. As she hopes the Committee will understand, she is only able to offer an explanation as to how a defendant in the UK would be able to make use of the EIO. In the UK this would be a very simple process. The defence would simply complete the relevant parts of the EIO and then apply to a judge for the EIO to be issued on their behalf. Were the judge persuaded that the request was made in connection with an ongoing criminal investigation or criminal proceedings and was necessary and proportionate he would issue the request on their behalf and receive the evidence back on their behalf. This is the same process as under the current MLA system. The Government believes that this strikes the correct balance between allowing the defence to use the EIO and ensuring that there is proper oversight of the requests that are being made.

11.19 In terms of timing, the Government believes that negotiations on the EIO will be long and complicated. The Minister cannot, for obvious reasons she says, give a clear indication of when negotiations will conclude and the Presidency has not made any claims on this front. Nonetheless she would not expect these to last less than 12 months and, indeed, the actual time required may be well in excess of this. She says that she will be writing to the Committee with regular updates concerning the progress of negotiations and that she will, of course, keep us informed as to any indication we are given of a target date for conclusion.

Conclusion

11.20 We thank the Minister for the very thorough responses she has provided to our questions on this important proposal.

11.21 We are gratified to note that the Government shares many of the concerns we raised in our first Report on the grounds for refusal and legal remedies in Articles 10 and 13, and has raised these concerns in negotiations. We would be grateful for an update on this aspect of the negotiations.

11.22 We would be grateful if the Minister could also provide 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.

11.23 The Minister states 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 the Minister's comments we reiterate our concerns about the presence of investigators (let alone the powers they might have) 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 have yet to understand the need to change it. The right of investigators from other EU Member States to be present at an investigation in the UK is, manifestly, a sensitive national issue, and we urge the Government to reconsider its position on this.

11.24 The Minister states 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 do not agree that a decision by the CPS to issue a request can be considered "judicial oversight": we ask the Minister to specify exactly which authorities in the UK will be able to issue a request for an EIO and how judicial oversight of such a request will be achieved.

11.25 In our earlier Report we asked for the response of the CPS to this proposal, and would be grateful to receive it.

11.26 We cannot overstate the importance of being kept informed by the Government 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. Unless told otherwise we are working on the understanding that these negotiations will not finish within a year.

Annex 1: Note from Fair Trials International

European Investigation Order: Frequently Asked Questions

Fair Trials International

28 July 2010

This short note has been produced following extensive media coverage on the European Investigation Order or "EIO", a new EU law proposed by a group of eight EU countries in April 2010, which the UK Government opted into on 27 July 2010.

The law will introduce major changes to the system by which evidence is obtained and shared between EU countries in criminal cases.

Our aim in this note is to clarify some of the potential consequences, both for individuals' civil liberties and for police resources, if the EIO in its current form became law in all EU countries.

Q  Does the EIO just simplify and codify the UK's current evidence-sharing arrangements?

No. The EIO would replace the existing system with a very different one. The current system for evidence gathering and sharing between EU countries has been in place for decades and is based on the principle of "mutual legal assistance", a flexible and discretionary system that allows a case-by-case consideration of overseas requests and how best to deal with them.

The EIO, on the other hand, is based on the more recent EU principle of "mutual recognition" — the automatic acceptance by one country of another country's judicial or prosecution decisions. This is a mandatory system characterized by strict time limits for compliance, limited grounds for refusal and almost no discretion for the country receiving the demand on whether to comply or not. As such, the EIO gives police and prosecution forces across the EU a new power to order police in other EU countries to gather and share evidence with them. (At present they can only request this and cannot impose mandatory time limits.)

Q  How will EU countries' police forces and prosecutors be able to use the EIO?

The EIO contains an obligation on the country that receives an EIO to allow the presence and participation of police from the country that issued the EIO. This means, for example, that if the French authorities wanted to investigate an offence, they could require police officers in the UK to let them participate directly in aspects of their investigation taking place in the UK. This represents a change from the current system, under which the UK authorities would be entitled to refuse this.

That this departs from current practice is accepted in the explanatory memorandum to the EIO. It states that the obligation to let overseas forces participate "is new compared to existing EU instruments".

Q  Could a UK citizen be arrested by police from another EU country, for failing to comply with an EIO?

No. The EIO does not give direct law enforcement powers to police or other officials from other EU countries.

Q  Will the EIO place an extra burden on the police?

By simplifying the system for requesting evidence and making it mandatory, it is highly probable that the EIO will lead to an increase in the number of requests for evidence. The Home Office itself accepts that "the introduction of standardised forms is likely to increase both the numbers of [evidence] requests received from EU countries and those that are made by the UK which will inevitably have cost implications".

The European Arrest Warrant (EAW) — another mutual recognition instrument — is a good indicator of what impact the EIO will have on police resources in the UK. Since this fast-track extradition system was introduced, the number of EAWs sent to the UK has increased exponentially and yet the UK's own use of the system has remained relatively steady. The UK issues around 200 EAWs a year, but now receives between 3,000 and 6,000 EAWs a year from other EU countries. This has led to British police complaining about the burden of having to deal with a deluge of extradition requests for minor offences.

The EIO contains no "proportionality" requirement, so it could pose similar or even greater risks of over-use by some countries' prosecutors (particularly those, like Poland, which appear to have little or no discretion about whether to prosecute offences, however minor).

Q  Can the EIO be used to investigate activity that is not a crime in my country?

European Member States differ when it comes to what they class as illegal. For example, criminal defamation is an offence Portugal and holocaust denial an offence in Germany.

However, there is no "dual criminality" requirement in the EIO. This means that police in your country, acting on an order from authorities in another country, may in some circumstances have to investigate you in relation to conduct that is not a crime under your domestic law.

Q  Could the EIO be used to investigate me for an offence I have already been tried for?

Yes. There is no "double jeopardy" requirement in the EIO at present. This means that if a person has been tried and acquitted by one EU country, another can continue to order that evidence be gathered about that person for the same conduct.

Q  Can the EIO be used to gather evidence about me even if I'm not a suspect, or for "fishing expeditions" where there is no clear link between the evidence and any offence?

Yes, in its current form. There is no requirement in the EIO that you need to be suspected of a crime for evidence to be gathered from or about you under an EIO.

Nor is there any requirement for you to be informed if evidence has been gathered about you under an EIO and shared with other European countries. You may never find out that this has occurred or what has happened to the personal information that was collected about you. There are no safeguards or rules about this in the EIO.

There is no clear statement in the EIO that a country issuing an EIO must provide enough information to satisfy the country receiving it that the evidence to be provided bears direct relevance to an actual offence they reasonably believe has occurred.

Q  If I am accused of an offence, can I use the EIO to get evidence to clear my name?

No. The EIO is a prosecution tool and contains no reference to evidence needed by the defence. It would remove the current "mutual legal assistance" framework under which, in many countries (including the UK), defendants can ask courts to help them obtain relevant evidence located in another country, including witness testimony and documentary evidence.

Q  What is Fair Trials International's position on the EIO?

Fair Trials International welcomes legal measures that help European countries cooperate in bringing to justice those suspected or convicted of criminal offences. We also recognise that maximizing the amount of relevant evidence that can be obtained and shared fairly can only have a positive impact on the trial process. In principle, the more evidence that is available the more likely there will be a just outcome.

However, we have major concerns both about the fundamental rights implications and the lack of any effective scrutiny or political debate prior to the UK being forced to decide whether to opt into the EIO.

Fair trial, privacy and data protection fears

The EIO would have a significant impact on the way evidence is gathered and shared in Europe, and we are concerned about the ramifications it will have for police resources and civil liberties. We question whether "mutual recognition" is really the right model to use for investigations and evidence-gathering between countries with very different legal systems, privacy protection and fair trials standards. This is especially so when basic minimum data protection and fair trial standards are still not in place across the EU.

Lack of public and political debate or scrutiny

We are also concerned about the invidious position in which the UK, Ireland and Denmark were placed in relation to the opt-in decision. They had to decide in just three months (during which the UK held a general election), whether to opt-in and thus at least have the opportunity to attempt to influence the final text (with no guarantee of doing so). The alternative was to opt out, meaning requests for evidence made to or by the UK would be handled under a different regime than that which would apply to the majority of States bound by the EIO. The UK could have chosen to opt in later but, having opted in now, it is prevented from opting out later. If the EIO has the same serious flaws it has now when it is enacted, the UK will be stuck with it.

The three-month deadline imposed on the UK to decide whether to opt in also prevented the Commons European Scrutiny Committee from even looking at the EIO before the opt-in decision had to be made.

Under these circumstances Fair Trials International believed the UK should have used its influence to persuade the Member States who initiated the EIO proposal to withdraw it. This would have allowed the time for a thorough impact assessment to be carried out, the likely cost of the EIO to be determined and the appropriate scrutiny, at EU and national level, to be conducted.

Does the current system really need this overhaul?

Almost no information has been provided yet to show why we need to overhaul the current system, which many countries including the UK have said works well. If more time had been available before the EIO was rushed through, this could have been looked at in depth and more care taken to focus on the actual problems with the current system and how best to remedy them.

As it is, we risk losing the benefits of the current system and repeating the mistakes of the first EU "mutual recognition" instrument, the European Arrest Warrant, which was also rushed into law with insufficient public debate or political scrutiny.

Q  What next?

Since the UK has chosen to opt in, Fair Trials International will lobby for necessary safeguards to be introduced into the EIO to minimize the risks for fundamental fair trial and privacy rights and ensure there is no repeat of the injustices and waste of resources that are the unintended side effect of the European Arrest Warrant. We were pleased that the UK Government committed itself (in the Home Secretary's announcement in the Commons on 27 July) to negotiating hard for many of safeguards we have called for.

Annex 2: Briefing from JUSTICE

Briefing on the European Investigation Order

For Council and Parliament

August 2010

Introduction and Summary

1.  JUSTICE is a British-based human rights and law reform organisation, whose mission is to advance justice, human rights and the rule of law. JUSTICE is regularly consulted upon the policy and human rights implications of, amongst other areas, policing, criminal law and criminal justice reform. It is also the British section of the International Commission of Jurists.

2.  Belgium, with the support of a number of member states, has presented a proposal for a European Investigation Order (the Initiative).[58] The proposal follows the commencement of a European Commission consultation process, in light of a new mandate in Article 82(2) Treaty on the Functioning of the European Union (TFEU) to establish minimum rules to facilitate mutual recognition concerning the mutual admissibility of evidence between Member States. The Commission issued a Green Paper in November 2009 in relation to streamlining the mechanisms of obtaining evidence and the obstacles to admissibility of that evidence in cross border criminal cases in the European Union.[59]

3.  There are a number of instruments currently in force which attempt to provide a framework for evidence gathering.[60] These are fragmentary and repetitive. They slow the investigatory and prosecution process in confusing procedural rules. JUSTICE published an article[61] at the end of 2009 examining the different mutual legal assistance and mutual recognition instruments, and concluded that it was necessary to produce a comprehensive, legally binding instrument which could provide the definitive framework to criminal investigation in cross border matters in the European Union.

4.  We welcomed the Commission consultation on this issue in our response to the Green Paper. However, we also expressed caution that there is a real and serious risk of any new instrument simply continuing the trend of previous mutual recognition and legal assistance instruments of inadequately considering the position of the suspect, in an effort to improve efficiency. The rights of the suspect are more important than ever if comprehensive, streamlined cross border evidence collection and usage is to be embarked upon. We continue to consider it imperative that the procedural safeguards under consideration in the Swedish Presidency's Roadmap[62] should be adopted before any further integration of prosecution mechanisms. Equally, the impact upon complainants and witnesses of cross border law enforcement agencies must not be underestimated and the continuing work in relation to victims and witnesses[63] must have progressed to a satisfactory stage before witness evidence is requested through mutual recognition arrangements. The Belgian Initiative does nothing to allay these concerns.

5.  This briefing is intended to highlight JUSTICE's main concerns regarding the initial draft of the Initiative. Where we have not commented upon a certain provision that should not be taken as an endorsement of its contents. In particular we consider that:

·  The submissions to the Commission's consultation process should not be ignored in the negotiations on the member state initiative;

·  Legal basis should be grounded in article 82(1)(a) TFEU;

·  Since the instrument is intended to cover wide ranging evidence requests on a mutual recognition basis, judicial scrutiny at both the issuing and executing stage is imperative;

·  A necessity and proportionality test is required, as in the EEW;

·  Grounds for non-recognition should encompass those set out in the EEW and fundamental rights;

·  Legal remedies cannot be effective unless a structure is provided in which representations can be made;

·  Data must be protected in accordance with article 8 ECHR and article 7 EU Charter, and the data protection framework decision should be referred to in the Directive;

·  Additional safeguards are required for particular special provisions.



Mandate

6.  The Stockholm Programme identified the need for action in this area:

Para 3.1.1 "criminal law": The European Council considers that the setting up of a comprehensive system for obtaining evidence in cases with a cross-border dimension, based on the principle of mutual recognition, should be further pursued. The existing instruments in this area constitute a fragmentary regime. A new approach is needed, based on the principle of mutual recognition but also taking into account the flexibility of the traditional system of mutual legal assistance. This new model could have a broader scope and should cover as many types of evidence as possible, taking account of the measures concerned.

7.  The European Council went on to invite the Commission to:

    

- propose a comprehensive system, after an impact assessment, to replace all the existing instruments in this area, including Council Framework Decision 2008/978/JHA of 18 December 2008 on the European Evidence Warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters, covering as far as possible all types of evidence and containing deadlines for enforcement and limiting as far as possible the grounds for refusal,

- explore whether there are other means to facilitate admissibility of evidence in this area.

8.  The Commission embarked with expediency upon this consultation exercise, receiving many responses[64] and is progressing towards an impact assessment on the effect of widening the scope of EU mutual recognition in this area. Whilst the mandate is available for member states to present initiatives in this area, the Belgian Initiative appears to have ignored the Commission process. However, perhaps in recognition of the importance of the impact assessment, a detailed statement was published on the 23rd June[65] detailing the basis for the Initiative.

9.  We urge the member states to refer to the consultations posted upon the Commission website during their working party deliberations. There are many eminent authorities represented here, with sensible and cautionary legal analysis which ought not to be wasted by the interjection of the Initiative. The Commission has helpfully summarised the responses received in a four page document, also available on the website.[66]

Preamble — Legal Base

10.  The instrument is based in Article 82(1)(a) TFEU which provides that measures shall be adopted to 'lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions'. We consider that article 82(1)(a) is the appropriate basis for the instrument since a judicial decision should be taken in order for an EIO to be issued. Whilst the request is to facilitate the investigation of an offence, the specific request is for a particular type of evidence to be obtained. The decision to seek that particular evidence should be made by a judicial authority. For example, in the UK, a search order and many other types of evidence gathering must be authorised by a magistrates' court. We would expect the same authorisation for an EIO, in order for the request to be verified.

12.  However, some of the measures envisaged in the Initiative will engage cooperation between police forces rather than judicial authorities and it is not clear how they can fit within the same legal basis, such as controlled deliveries, interception and surveillance. The circumstances in which these measures will be appropriate do not easily lend themselves to the construct of recognising a judicial decision because they are part of police operations when an offence is being committed, not the gathering of evidence to prove an offence committed in the past. Article 87(2) refers to police cooperation in relation to the prevention, detection and investigation of criminal offences where measures may be established concerning 'the collection, storage, processing, analysis and exchange of relevant information'. Surveillance and controlled deliveries fall squarely within the collection of information, which at the time it is collected will not be evidence of anything because no offence will have been committed. These types of investigation lend themselves far more appropriately to the MLA regime. In our view, an instrument that seeks to advance rules in this area must be decided under article 82(1)(d), for which the special legislative procedure will apply.

Article 3 — Scope

13.  The Initiative proposes the replacement of all existing instruments within the EU which seek to deal with gathering evidence. This would resolve the fragmentary set of laws currently in operation, which would be compounded were the framework decision on the European evidence warrant (EEW) to come into force in January 2011 as currently required.

14.  However, since the instrument will encompass all evidence gathering requests save for those identified in article 3(2), the measure is extremely broad. We agree that this is sensible to avoid the continued fragmentation of evidence exchange instruments. As explained above, we do not consider that clear police cooperation measures should be included in this instrument — intercept, surveillance, controlled deliveries. Moreover, it is not clearly explained where the instrument should apply and where it should not. Some intercept measures are excluded, some are not. For example, recital 9 asserts that the instrument will not apply to cross border surveillance, but the Initiative is envisaged to apply to in-country surveillance without clear explanation for the difference approaches. This issue must be addressed.

15.  Legal certainty requires that the investigative measures included be clearly described and the investigative measures excluded be clearly specified in the body of the text. The Presidency's suggestion that an additional sentence be added to article 1(1) providing: 'The EIO may also be issued for obtaining evidence that is already available to the competent authorities of the executing State'[67] goes someway to grappling with this issue. In our view the explanation should be inserted in article 3(1) rather than article 1(1) in any event, but we consider there needs to be an indicative paragraph so that member states and practitioners can attempt to use the instrument in a uniform manner.

Judicial Scrutiny

16.  The Detailed Statement suggests that the main aim of the objective is to search for the truth in criminal proceedings. It would 'strengthen the trust of the citizen in their national system and in the EU framework: this includes trust in the ability of the system to prevent crime and to sanction offenders as well as trust in the fact that persons wrongly accused will be cleared.'[68] The statement further asserts that a high level of protection of fundamental rights, especially procedural rights must be maintained: evidence gathered in another member state must not affect the right to a fair trial. The Detailed Statement has referred to the Analysis of Mutual Recognition report. The study also found that member states thought that mutual trust is still not spontaneously felt and is not always evident in practice. All interviewees thought that it was an evolving process which requires the engagement of both the requesting and receiving countries.[69] In our view it will not be possible to harbour the trust of other member states or citizens, or ensure a fair trial unless judicial scrutiny is ensured. Removal of judicial oversight can lead to arbitrary police action and police officers acting with impunity. The Initiative currently does not secure judicial scrutiny at either the issue or execution stages.

Articles 2 and 5 — Issue

17.  Because of the wide scope of the instrument it is crucial to ensure that any request is subject to judicial scrutiny and a review mechanism.

18.  The issuing authority is defined widely in article 2(a)(i) as 'a judge, court, investigating magistrate, competent public prosecutor for the case concerned then alternatively (ii) 'any other judicial authority as defined by the issuing state and in the specific case action in its capacity as an investigating authority in criminal proceedings with competence to order the gathering of evidence in accordance with national law.'

19.  This definition is intended, according to the explanatory memorandum,[70] to encompass a police decision to gather evidence which is not subject to judicial approval. The Discussion Paper says as a matter of principle, the issuing authority is a judicial authority. It then qualifies this principle by affirming that the authority can also come from a body acting in its capacity as an investigating authority, such as the police, in case they would have the authority to order an investigation at national level.[71] We do not consider it appropriate for the issuing authority to be as widely defined as article 2(1) allows, notwithstanding in some member states a police authority could order gathering of material. Given the breadth of the instrument and the basis in mutual recognition, we consider that a police authority is not sufficiently objective, independent or legally qualified to decide whether issue of a request for evidence to be gathered by another member state is appropriate. It has long been a general principle of the European Convention on Human Rights that the rule of law implies, inter alia, that an interference by executive authorities with an individual's rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort; judicial control offering the best guarantees of independence, impartiality and a proper procedure.[72] It would not in our view accord with the basis of the instrument in article 82(1)(a) 'judicial decision', and it would not foster mutual trust in the decision making process if the same authority requiring the evidence could issue the request. The instrument should make it clear that this will not be a possibility.

20.  Furthermore, in order to decide whether issue is appropriate, a 'judicial decision' must entail a scrutiny process. In our view this must verify that requests are only sought (1) when there are reasonable grounds to suggest an offence has been committed and (2) that obtaining the evidence is both necessary and proportionate. Article 7 EEW does provide that the issuing authority may only issue an EEW when:

(a)  obtaining the objects, documents or data is necessary and proportionate for the purpose of proceedings referred to in Article 5.

21.  The Presidency has suggested in the Follow Up document to the Working Party on 12th and 13th July that consideration be given to the insertion of an obligation upon the issuing authority to apply a proportionality test.[73] We consider that the test in article 7 EEW must be included in the EIO. However, the 'purpose of proceedings' set out in article 5 EEW (replicated in article 4 of the Initiative) does not require the issuing judicial authority to verify that there are reasonable grounds for believing that an offence has been committed in the first place. This is a mandatory threshold in England and Wales for an evidence warrant to be issued,[74] and a similar test must be required in most member states, in order to comply with the article 8 ECHR right to privacy.

22.  Article 7 of the EU Charter on Fundamental Rights (the Charter), which provides for respect for private and family life, must equally be satisfied by the Initiative, with any limitation pursuing a legitimate aim. Whilst the investigation of crime is such an aim, it must be carried out in a way that is proportionate: In Kadi,[75] the European Court of Justice considered whether freezing measures imposed on the appellants were a disproportionate and intolerable infringement of their fundamental right to property. The Court was assisted by the jurisprudence of the ECtHR in Strasbourg which establishes the requirement of proportionality and is applicable to the EU through the Charter:

In this respect, according to the case-law of the European Court of Human Rights, there must also exist a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Court must determine whether a fair balance has been struck between the demands of the public interest and the interest of the individuals concerned. In so doing, the Court recognises that the legislature enjoys a wide margin of appreciation, with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the public interest for the purpose of achieving the object of the law in question.

23.  In applying this reasoning, it would be disproportionate to request an EIO for all suspected criminal offences (or administrative acts with criminal penalties pursuant to article 4), given the impact upon the individuals concerned and the amount of resources that would be incurred. It should be remembered, in accordance with the subsidiarity principle and the development of EU activity in freedom, security and justice, that the involvement of the EU in this area is justified for serious, not petty crime. Despite the assertion of the Presidency in the Discussion Paper that it is 'self-evident that a realistic approach towards a rational use of available resources for investigations demands that a certain threshold of seriousness of the offence to be investigated via the EIO be respected by the issuing authorities',[76] the numbers of EAW requests have continued to increase.[77] The EIO is equally likely to require significant additional resources.[78] Given the financial crisis, member states will want to ensure that the EIO is only used to assist in investigations in serious cases.

24.  Article 5 of the Initiative only requires the issuing authority to certify as accurate the content of the form in Annex A. In order for the EIO to be used in a proportionate manner, it is appropriate for the Directive to include a scrutiny test, so that member states know the issuing authority is required to verify the request is proportionate to the circumstances being investigated. The ECtHR has long since held that the law must indicate the scope of any discretion conferred on competent authorities, and the manner of its exercise, with sufficient clarity, having regard to the legitimate aim of the measure in question, in order to give the individual adequate protection against arbitrary interference with their article 8 ECHR rights.[79]

Article 4 — Types of procedure

25.  Article 4 provides that an EIO may be issued in respect of certain proceedings that have been or may be brought before a judicial authority under the national law of the issuing state. It does not, however, assert that the investigating measure must also be available under national law. We are concerned that the lack of qualification here would enable forum shopping. For example, England and Wales is the only Council of Europe contracting party to permit systematic and indefinite retention of DNA samples. Most member states require specific circumstances to exist and/or a serious offence to be suspected.[80] If a member state had received information from the UK that their suspect had been convicted of an offence in England,[81] under the Initiative they could choose to request a sample from England, despite having no other evidence against their suspect and despite the suspected offence being too minor for a sample to be taken domestically, knowing that under England's current law[82] a sample would have been retained.

26.  In Klass the ECtHR were considering the surveillance of correspondence, to which the collection and review of material would take place without the suspect's knowledge. The Court held that since the individual will necessarily be prevented from seeking an effective remedy of his own accord or from taking a direct part in any review proceedings, it is essential that the procedures established should themselves provide adequate and equivalent guarantees safeguarding the individual's rights.[83] As written, because the Initiative covers surveillance material for which review may be limited, it opens up the possibility of use of evidence through forum shopping without the suspect ever knowing this information had been used. Article 7 EEW again provided against this possibility:

(b)  the objects, documents or data can be obtained under the law of the issuing State in a comparable case if they were available on the territory of the issuing State, even though different procedural measures might be used.

We consider that the same test is required for the EIO.

Article 8 — Execution

27.  Article 8 of the Initiative states that the executing authority shall recognise the EIO without any further formality being required. An executing authority is defined in article 2(b) as an authority competent to undertake the investigative measure. The Explanatory Memorandum goes further,

[I]t is required that the executing authority be an authority competent to undertake the investigative measure mentioned in the EIO in a similar national case. If the EIO is issued to search a house in a specific location in Member State A, the executing authority must be an authority which would be competent, in a similar national case, to decide to search a house in the location concerned.

28.  This is problematic as a separate authority has not been provided to verify that there are no grounds for postponement or refusal. For the same reasons that the issuing authority must be judicial, we consider that the authority carrying out the request cannot be tasked with the assessment of whether the request should be recognised or not. This is a judicial decision requiring a judicial authority to consider whether the grounds for refusal are made out. The police authority which carries out the investigation is not sufficiently distanced from the activity to make this sort of assessment, nor are they likely to be sufficiently legally trained to do so. Article 13(2) EEW requires a decision on refusal to be taken by a judge, court, investigating magistrate or public prosecutor. Article 16(2) requires the same types of authority to consider postponement. In order to be Charter compliant, the same test must be incorporated into this instrument.




Article 10 — Grounds for non-recognition

29.  The grounds upon which an EIO can be refused are much more limited than those under mutual legal assistance, or the EEW. There are only four grounds provided in the Initiative at article 10:

a)  there is an immunity or a privilege under the law of the executing State which makes it impossible to execute the EIO;

b)   in a specific case, its execution would harm essential national security interests, jeopardise the source of the information or involve the use of classified information relating to specific intelligence activities;

c)   in the cases referred to in Article 9(1)(a) and (b), there is no other investigative measure available which will make it possible to achieve a similar result, or

d)   the EIO has been issued in proceedings referred to in Article 4(b) and (c) and the measure would not be authorised in a similar national case.

30.  The Explanatory Memorandum makes clear that this limitation was intentional. The Discussion Paper suggests that the field of obtaining evidence does not necessarily require the same rules as the execution of penalties or decisions to arrest people and it is not therefore appropriate to consider grounds for refusal set out in other mutual recognition instruments.[84] However, the Initiative omits previously agreed absolute grounds for refusal: ne bis in idem, territoriality, and double criminality (unless one of the framework offences is engaged). Article 13 EEW recognises these absolute grounds.

31.  These principles are equally applicable and important in the field of gathering evidence as in any other aspect of mutual recognition because the consequence of evidence gathering can be prosecution; if the prosecution of an offence has been finally concluded in one member state, ne bis in idem prevents the investigation of the same offence by another member state. The European Court of Justice has confirmed this in application of the Schengen Convention[85] and article 50 of the Charter guarantees its protection. Territoriality is a necessary principle in order to comply with a number of member states' constitutions and goes to the issue of necessity and proportionality. In the Discussion Paper, the Presidency suggests that inclusion of double criminality would be a step backwards. We consider it important to recognise that we have not yet moved forwards. Double criminality is still an important measure in judicial cooperation because procedural safeguards are yet to be realised and mutual trust is not yet sufficiently established within the European Union.[86]

32.  Furthermore, article 10 does not confirm that a request can be refused on fundamental rights grounds. We consider that for legal clarity, certainty and uniformity across the member states, it is necessary for the directive to specify fundamental rights under this head as a ground of refusal, notwithstanding that article 1(3) says the directive will not have the effect of modifying the obligation in article 6 TEU.

Article 12 — Data protection

33.  A request for evidence will necessitate consideration of data protection, storage and retention. Article 12(2) allows the executing state to specify whether the evidence should be returned to it once it is no longer required by the issuing state. This is a very vague provision. No mention is made of whether the issuing state may be entitled to make copies of the evidence, and therefore be entitled to retain and store such copies, or what the issuing state should do with the evidence where the executing state does not make representations as to its return.

34.  Council of Europe and EU instruments in relation to the collection of personal and automated data are extensive.[87] In the particular area of police and judicial cooperation, rules covering all aspects of data protection that govern the functioning of Europol, Eurojust, the Schengen Information System, the Customs Information System, and the European Criminal Records Information System (once it is effective), will have to be considered when those organisations and data systems are engaged.

35.  The Commission has recently received responses to its consultation on the legal framework for the fundamental right to protection of personal data.[88] It is clear from this consultation process that the current collection of data protection instruments in the EU is inadequate. The Article 29 Data Protection Working Party responded to the consultation with an extensive document setting out the current framework and proposals for the future.[89] Investigative techniques have evolved considerably with advances in technology, and authorities without a crime detection purpose now have access to interoperable data stores. It is possible to obtain large amounts of information about a suspect without their knowledge. How member states obtain and retain that information in the course of a domestic investigation varies widely, yet the EIO will rely heavily upon the national law of the requested member state to obtain requested information.

36.  The ECtHR in Marper recalled that the right to private life enshrined in Article 8 of the Convention is a broad term not susceptible to exhaustive definition. As such, storing of data relating to the private life of an individual, including retention of cellular samples, DNA and fingerprinting, amounts to interference within the meaning of Article 8. Due regard must be given to the specific context in which the information at issue has been recorded and retained, the nature of the records, the way in which these records are used and processed and the results that may be obtained. There is a legitimate aim in the prevention of crime, but retention must be proportionate with the purpose of the collection and for limited periods. The potential benefit of such evidence must therefore be carefully balanced against important private life interests.

37.  Data protection provides another example of why judicial scrutiny is so important. The framework decision on protection of personal data processed in the framework of police and judicial cooperation in criminal matters[90] must be implemented domestically by the 27 November 2010. The Directive should specify in article 12 that the framework decision and other relevant data protection legislation apply.

Article 13 — Legal remedies

38.  Article 13 states that legal remedies 'shall be available for the interested parties in accordance with national law. The substantive reasons for issuing the EIO can be challenged only in an action brought before a court of the issuing state.' The article is very limited.

39.  In the Follow Up document, the Presidency states that legal remedies should reflect what is available under MLA requests and national law. This cannot be correct because the Initiative presents an alternative regime, with far less discretion than under MLA for the executing authority to scrutinise the instrument. The national system is also not entirely satisfactory because the representations of the interested parties have heightened importance; Personal information relating to them is to be used in proceedings in another jurisdiction where their ability to challenge its use is limited by geographical distance, and language, cultural, procedural and legal ignorance. The creation of the mutual recognition regime must not compromise equality of arms.

40.  As much was recognised in article 18 EEW. It provides a much clearer structure for the effective challenge to evidence requests in the issuing state and recognition in the executing state:

1.   Member States shall put in place the necessary arrangements to ensure that any interested party, including bona fide third parties, have legal remedies against the recognition and execution of an EEW pursuant to Article 11, in order to preserve their legitimate interests. Member States may limit the legal remedies provided for in this paragraph to cases in which the EEW is executed using coercive measures. The action shall be brought before a court in the executing State in accordance with the law of that State.

2.  The substantive reasons for issuing the EEW, including whether the conditions established in Article 7 have been met, may be challenged only in an action brought before a court in the issuing State. The issuing State shall ensure the applicability of legal remedies which are available in a comparable domestic case.

3.   Member States shall ensure that any time limits for bringing an action mentioned in paragraphs 1 and 2 are applied in a way that guarantees the possibility of an effective legal remedy for interested parties.

4.   If the action is brought in the executing State, the judicial authority of the issuing State shall be informed thereof and of the grounds of the action, so that it can submit the arguments that it deems necessary. It shall be informed of the outcome of the action.

5.  The issuing and executing authorities shall take the necessary measures to facilitate the exercise of the right to bring actions mentioned in paragraphs 1 and 2, in particular by providing interested parties with relevant and adequate information.

6.   The executing State may suspend the transfer of objects, documents and data pending the outcome of a legal remedy.

41.  In Kadi,[91] the ECJ noted that the applicable procedures giving effect to legislation must also afford the person concerned a reasonable opportunity of putting his case to the competent authorities: in order to ascertain whether this opportunity has been provided, a comprehensive view must be taken of the procedures provided. This opportunity of putting one's case is now a binding requirement of article 47 of the Charter. The Charter, read in conjunction with the minimum standards of the ECtHR's jurisprudence, also requires the 'practical and effective' guarantee of the rights enshrined.[92]

42.  In our view, to comply with the Charter and to effectively guarantee the legal remedies suggested in article 13, the EIO must provide for a hearing before a judicial authority in the requested state, to decide whether the request will be granted. This hearing will allow the suspect to make representations as to whether the grounds for refusal are made out and whether he has any fundamental rights which ought to prevent the gathering or return of evidence. Whilst the judicial authority may be able to decide whether there are grounds for refusal in most circumstances without representations being made, there will be many more circumstances where the fundamental rights of the suspect are engaged without the executing authority being aware.

43.  As indicated in article 18(6) EEW, there might be circumstances, where the executing authority sees no prima facie grounds for non-execution, in which it is appropriate to seize materials to ensure that the investigation is not jeopardised by an advance hearing. However, the material seized must be held pending the notification of and possible representations by interested parties before a judicial hearing in the requested state, prior to the transmittance of the material to the issuing state. This codified process will allow the affected parties to make representations about the release of the material where it might affect their fundamental rights. By setting out this structure, the right is given effect to at the most crucial stage; it may not be possible to raise arguments of this nature before the issuing court since they might accept the evidence without enquiring as to how it is gathered, or the suspect's concern might relate to how the evidence will be used in the issuing state.

44.  In this regard, we do not accept that the right must be limited so that the substantive reason for issuing can only be challenged in the issuing state. This is because such a limitation could place a fetter on the right to challenge the interference with a fundamental right under the Charter; inherent in the reason for issue might be an exercise of a freedom of expression, assembly, religion or other Charter right which constitutes an offence in the issuing state, but does not in the executing state.

45.  An example of where this structure will be imperative is where a request comes for the seizure of computer files belonging to a person suspected of fraud, committed on a particular date and evidence for which the requesting state believes to be stored on a personal laptop. The requesting state has no details other than the first and second name of the suspect and does not ask for specific files. The suspect's name registers on the records of the requested state, with an address. A search warrant is requested from the local court, which finds no applicable grounds for refusal to execute and agrees that the evidence might be destroyed if advance notice is given. A decision is taken to search the premises during which a laptop is found and seized. The suspect, who was not present during the search, is informed by the executing authority that they have the right to make representations about the copying and sending of files to the requesting state. The suspect asserts that whilst he conducts business transactions with the requesting state, he is innocent of the crime. He produces a photograph of himself and the image is checked with the requesting state. It is confirmed that this is not the person they have been looking for. Had the mechanism not been provided for making representations at this stage, his personal computer files would have been sent to the requesting state. Given the nature of the enquiry, the requesting state may have decided that it was necessary to seek an EAW to interview and charge the suspect with the offence. The suspect would then have been subject to arrest, detention and surrender proceedings before he could assert that he was not the correct person.

46.  Equally, the instrument must allow for legal representation, with legal aid where appropriate, and include reference to the application of the directive on interpretation and translation.[93]

47.  In the Follow Up document, the Presidency has stated that legal remedies should be exercised within the time limits provided for in Articles 11 and 12, as they do not constitute a ground for postponement of recognition or execution according to Article 14. We do not think this is accurate; Article 11(5) of the Initiative provides for extension of time where it is not practicable to comply within the 30 day deadline. The reasons set out in this article have not been limited by the grounds for postponement, and in any event must encompass the need to provide an effective right to make representations.

Specific Provisions for certain measures

48.  Working Party deliberations have not yet considered the specific provisions in the Initiative. We are encouraged that the Initiative recognises the need for particular obligations for certain types of evidence. The mutual recognition regime does not lend itself to a process of dialogue, however, so it is important to ensure that all appropriate safeguards are asserted in the body of the Directive.

Articles 19 and 20 — Transfer of persons held in custody

49. Articles 19(2) and 20(2) provide additional grounds for refusal of a request in circumstances of transfer. We consider it prudent to include here a ground for the person being unfit to travel. This may not always be encompassed in the article 19(2)(a) ground allowing the person to refuse consent.

50.  It is also important to state in the article that persons should, as far as possible, be kept in the same prison conditions in the other state, irrespective of the length of their transfer; If the prisoner has been in category A secure conditions they ought not to be held in an open prison, and vice versa, to maintain both their sentencing requirements, and any degree of liberty that may have been granted. This safeguard would also aim to protect the suspect from the prison population where they are a minor offender/remand prisoner, and conversely, the prison population where the suspect is a serious offender.


Article 21 — Hearing by video conference

51.  We welcome the safeguards and structure envisaged for hearings by videoconference set out in article 21, which largely replicate existing mutual legal assistance requirements. Where a witness cannot attend a trial in the requesting member state, provision for video or audio transmission of evidence will no doubt enable important evidence to be used in the trial, for both prosecution and defence. However, video and audio evidence is not an adequate substitute for the examination of a witness in the courtroom. The European Court of Human Rights (ECtHR) considered the use of videoconference in Viola v Italy[94] where it held that:

67. Although the participation of the defendant at his trial by videoconference is not as such contrary to the Convention, it is incumbent on the Court to ensure that recourse to this measure in any given case serves a legitimate aim and that the arrangements for the giving of evidence are compatible with the requirements of respect for due process, as laid down in Article 6 of the Convention…

74. Admittedly, it is possible that, on account of technical problems, the link between the hearing room and the place of detention will not be ideal, and thus result in difficulties in transmission of the voice or images.

52.  As such, we do not consider that article 21(5) imposes a high enough threshold simply by stating that 'the EIO…shall contain the reason why it is not desirable or possible for the witness or expert to attend in person'. We think that the provision should only be used as a last resort where the witness is unable to travel through illness or fear, having been satisfactorily established on evidence. This is how an equivalent special measure would be applied to witness evidence in England and Wales.[95]

53.  In relation to article 21(6)(e) on claiming the right not to testify and (9) on the consequences of refusal to testify, the witness must have the legal ramifications of their decision explained to them by the judicial authority of the executing state, and be notified of the right to legal advice prior to exercising their consent, in order to ensure that they are able to make a fully informed decision as to whether to participate.

54.  A request to take evidence from a suspect in accordance with article 21(10) would mean conducting an interrogation. This would have to adhere to the requirements of article 48 of the Charter in conjunction with article 6 ECHR. Article 6(1) taken with 6(3)(c) (as to legal representation) and (e) (interpretation and translation) apply to pre-charge proceedings.[96] The ECtHR in Viola[97] placed significant emphasis on the fact that the suspect must have legal representation and be able to consult with their lawyer confidentially during videoconference proceedings. These rights must be protected by inclusion in the body of the measure.

55.  Further assistance on videoconference can be found in Articles 11 and 12 of Council Regulation 1206/2001 on cooperation between the courts of the member states in the taking of evidence in civil or commercial matters,[98] in which member states agreed that where the law of the requesting state allows, the parties and their representatives, or representatives of the requesting court, may be present for the questioning, who may also seek to participate in accordance with Article 10 of the Regulation.

56.  We consider that the article should conclude with an additional sub article requiring the witness and suspect to be notified of their rights under the law of the executing state, and for reference to the application of the framework decision on the standing of victims in criminal proceedings, and the directive on interpretation and translation to be made.

Article 22 — Hearing by telephone conference

57.  The above considerations apply with respect to telephone hearings. However, teleconference evidence is particularly unreliable because it is very difficult to assess the credibility of the witness without seeing them.[99] For this reason we consider that where its use is necessary, it should be limited to experts who are unable to use a video link, whose veracity is not in question, and who agree to such a process.

Article 27 — Intercept Evidence

58.  This is a complex and somewhat controversial area. JUSTICE has long been concerned with these issues with respect to the refusal of the UK Government to allow the use of intercept evidence in criminal trials.[100] The use of intercept evidence raises a number of human rights issues, chiefly the right to a fair trial and the right to privacy, protected under Articles 6 and 8 ECHR respectively. The way in which interceptions are regulated, and the extent to which any unused intercept material is disclosable to defendants, both impact on fundamental rights. But the failure to allow intercept evidence also raises human rights issues. There is the public interest in ensuring that interception capabilities are not compromised, so that intercepted communications continue to be of value in detecting and preventing serious crime and acts of terrorism. Most of all, there is the public interest in the fair administration of justice: ensuring that the criminal process works effectively to protect fundamental rights, convict the guilty and acquit the innocent.

59.  The ECtHR has noted that covert interception of communications by law enforcement or intelligence services can 'only be regarded as 'necessary in a democratic society' if the particular system of secret surveillance adopted contains adequate guarantees against abuse.'[101] Equally, 'the domestic law must provide some protection to the individual against arbitrary interference with Article 8 rights. Thus, the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in and conditions on which public authorities are empowered to resort to any such secret measures.'[102]

60.   However, decisions such as Schenk v Switzerland[103] are concerning when applied in cross border mutual recognition instruments. Here the ECtHR found that even though the interception was unlawful under Swiss law, the rules governing the admissibility of evidence were a matter for national law and that it could not therefore 'exclude as a matter of principle and in the abstract that unlawfully obtained evidence of this kind may be admissible.'[104] As stated above, the ramifications of forum shopping where a less regulated country could obtain such evidence through the Directive requires robust regulation as to how this evidence might be obtained and used.

61.  Judicial scrutiny of requests in both the issuing and executing states is in our view all the more important to ensure that this type of evidence does not infringe fundamental rights.

JUSTICE

August 2010


54   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

55   2003/577/JHA of 22 July 2003. Back

56   2008/978/JHA of 18 December 2008. Back

57   See headnote. Back

58   The Kingdom of Belgium, the Republic of Bulgaria, the Republic of Estonia, the Kingdom of Spain, the Grand Duchy of Luxembourg, the Republic of Austria, the Republic of Slovenia and the Kingdom of Sweden, Initiative for a Directive of the European Parliament and of the Council regarding the European Investigation Order in criminal matters, Council of the European Union (hereafter Council), 9145/10 (Brussels, 29 April 2010). Back

59   COM(09) 624 final (Brussels, 11 November 2009). Back

60   Council of Europe Convention on mutual assistance in criminal matters 1959 ETS No. 030, supplemented by its additional protocol of 1978, ETS No. 099, the second additional protocol of 2001, ETS No. 182; the Benelux Treaty of 1962; the Schengen Implementing Convention of 1990 OJ L 239 of 22.9.2000; and the Convention on mutual assistance between the Member States of the EU 29.05.2000, OJ C 197 of 12.7.2000. Many provisions of the convention are similar to those included in the second additional protocol of 2001 to the 1959 convention, ETS No. 182, which some of the Member States also ratified, and the additional protocol from 2001 OJ C 326 of 21.11.2001, Council Framework Decision 2008/978/JHA of 18th December 2008, on the European evidence warrant for the purpose of obtaining objects, documents and data for us in proceedings in criminal matters, OJ L 350 of 30.12.2008, p. 72. Bilateral treaties also exist.  Back

61   J Blackstock, 'Mutual legal assistance vs mutual recognition?' JUSTICE Journal [2009] 2, 41. Back

62   Resolution of the Council on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, Council of the European Union,15434/09 (Brussels, 24 November 2009).  Back

63   See Commission report pursuant to Article 18 of the Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings (2001/220/JHA), COM(2009) 166 final of 20 April 2009, concluding that the instrument is disappointingly still not implemented in many member states, and current consultation process. Back

64   All, including JUSTICE's submission, are accessible on the Commission website,

http://ec.europa.eu/justice_home/news/consulting_public/news_consulting_0004_en.htm. Back

65   Council, Detailed Statement, 9288/10 ADD 2 (Brussels, 23 June 2010). Back

66   Summary of the Replies to the Green Paper on Obtaining Evidence in Criminal Matters from one Member State to another and Securing its Admissibility, http://ec.europa.eu/justice_home/news/consulting_public/0004/summary_of_replies_en.pdf. Back

67   Council, Follow-up document of the meeting on 12-13 July 2010, 12201/10 (Brussels, 20 July 2010), EN, p 7. Back

68   Detailed Statement page 21. Back

69   G. Vernimmen-Van Tiggelen and L. Surano, Analysis of the future of mutual recognition in criminal matters in the European Union: Final Report, (IEE/ULB/ECLAN: Brussels, 20 November 2008), p 20. Back

70   Council, Explanatory Memorandum, 9288/10 ADD 1 (Brussels, 3 June 2010) Back

71   Council, Discussion Paper, 11842/12 (Brussels, 8 July 2010), EN, p 6. Back

72   Klass v Germany, App. no. 5029/71 (judgment 6th September 1978), para 55.  Back

73   Supra, page 11. Back

74   Police and Criminal Evidence Act 1984, s8. Back

75   Kadi v Council and Commission, Joined cases C-402/05 P and C-415/05 P, ECR 2008 p 00000, para 360. Back

76   Page 11. Back

77   For a helpful review of the Commission and Council figures, see Implementation of the European Arrest Warrant and Joint Investigation Teams at EU and National Level, European Parliament, DG Internal Policies of the Union, Policy Dept C, Citizen's Rights and Constitutional Affairs, PE 410.67 (January 2009) and for the most up to date figures see Council, Replies to questionnaire on quantitative information on the practical operation of the European arrest warrant - Year 2009, 7551/3/10, REV 3 (Brussels, 12 July 2010). Back

78   The UK produced a helpful estimate of possible costs to our system when considering whether to opt in to the instrument: UK Home Office, Explanatory Memorandum on European Union Legislation in Justice and Home Affairs Matters: Initiative for a Directive of the European Parliament and of the Council regarding the European Investigation Order in criminal matters, 9145/10 (25th May 2010), pp 24 - 28.  Back

79   Malone v UK, App. no. 8691/79 (judgment 2nd August 1984), paras 66 to 68 Back

80   S and Marper v UK, Application nos. 30562/04 and 30566/04 (judgment of 4 December 2008), paragraphs 46 and 47.  Back

81   A requirement to become usual practice by April 2012 under Council Framework Decision 2009/315/JHA, on the organisation and content of the exchange of information extracted from the criminal record between Member States, OJ L 93, 7.04.2009, p 23. Back

82   Though this is subject to review and imminent amendment. Back

83   Supra. Back

84   Page 8. Back

85   Joined Cases C-187/01 and C-385/01, Gözütok and Brügge, judgement of 11 February 2003, at paragraph 33. Back

86   See para 16 above. Back

87   Council of Europe Convention of 1981 for the protection of individuals with regard to automatic processing of personal data, ETS No. 108; Council of Europe Recommendation to the Committee of Ministers Recommendation No. R(87)15 regulating the use of personal data in the police sector (adopted on 17 September 1987); The Prüm Convention, Brussels, 6 December 2006, now included in the aquis by way of Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, OJ L 210, 6.8.2008, p. 1 (the Prüm Council Decision); Council framework decision of 24 June 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters, OJ L 350, 30.12.2008, p. 60-71, Council of Europe Convention of 2001 on cybercrime, ETS No. 185. Back

88   The consultation and responses are available at http://ec.europa.eu/justice_home/news/consulting_public/news_consulting_0003_en.htm, accessed on 19.01.2010. Back

89   Article 29 Data Protection Working Party, Working Party on Police and Justice, 'The Future of Privacy: Joint contribution to the Consultation of the European Commission on the legal framework for the fundamental right to protection of personal data', 02356/09/EN WP168, 1.12.09, available at http://ec.europa.eu/justice_home/news/consulting_public/0003/contributions/public_authorities/art29_wp_and_wppj_en.pdf Back

90   See note 30 above. Back

91   Supra, para 368. Back

92   Airey v Ireland, App. no. 6289/73 (judgment of 9th October 1979), para 24. Back

93   When it is formally adopted. Back

94   (Application no. 45106/04) judgment delivered on 5th January 2007. Back

95   Pursuant to sections 16 and 17 of the Youth Justice and Criminal Evidence Act 1999. Back

96   See recent cases of Salduz v Turkey (app. no. 36391/02), judgment of 27 November 2008; Panovitz v Cyprus (app. no. 4268/04), judgment of 11 December 2008; Pishchalnikov v Russia (app. no. 7025/04), judgment of 24 September 2009. Back

97   See note 11 above. Back

98   OJ L 174 of 27.6.2001, p. 1 Back

99   Dr. Arkadiusz Lach, Researcher in the Department of Criminal Procedure, Faculty of Law and Administration, Nicolas Copernicus University, Torun, Poland, 'Transnational Gathering of Evidence in Criminal Cases in the EU de lege lata and de lege ferenda', Eucrim 3/2009, 107 - 110 at 108. Back

100   See Under Surveillance: Covert policing and human rights standards (JUSTICE, 1998) and Intercept Evidence: Lifting the ban (JUSTICE, 2006) as well as numerous briefings on legislative proposals.  Back

101   Malone, supra, para 81.  Back

102   Halford v United Kingdom (1997) 24 EHRR 523, para. 49.  Back

103   (1988) 13 EHRR 242.  Back

104   Ibid at para. 46. Back


 
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