House of Commons - European Scrutiny Committee

European Scrutiny Committee Contents

22 European Investigation order

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9145/10

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Draft Directive on the European Investigation Order in criminal matters

Explanatory Memorandum

Legal base Article 82(1)(a) TFEU

Document originated (a) 27 April 2010
(b) 21 May 2010

Deposited in Parliament (a) 25 May 2010
(b) 4 June 2010

Department Home Office

Basis of consideration EMs of 5 and 25 May 2010; Minister's letter of 21 July

Previous Committee Report None; but see (31166) 17691/09: HC 5-v (2009-10), chapter 2 (6 January 2010)

To be discussed in Council No date set

Committee's assessment Legally and politically important

Committee's decision (a) Cleared; (b) Not cleared; further information requested

Background

22.1 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 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,[82] 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,[83] 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.[84] The EEW has not yet come into force.

22.2 The Stockholm Programme, adopted by the European Council in November 2009, identified the need for EU action in this area:

"The European Council considers that the setting up of a comprehensive system for obtaining evidence in cases with a crossborder 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" (para 3.1.1).

22.3 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" (emphasis added).

22.4 As a consequence of this recommendation, the Commission produced a Green Paper in November 2009. It sought the views of EU Member States and concerned "stakeholders" on whether there was a case for replacing the existing MLA instruments with a new single regime designed to make MLA easier and more effective and based on uniform rules on the admissibility of evidence in criminal trials. Our predecessors reported on this in January of this year,[85] and recommended it for debate in European Committee, which took place on 8 February.

22.5 It appears, however, that this Member State initiative for a Directive on MLA takes the place of a Commission proposal in the same field.

The Document

LEGAL BASE

22.6 The proposed legal base is Article 82(1)(a) TFEU — "lay[ing] down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions" — which means that the ordinary legislative procedure (formerly co-decision) is to be applied. This requires the Council to act by qualified majority voting and gives the European Parliament equal legislative rights in the adoption of the Directive. Under the Lisbon Treaty reforms compliance with this Directive will fall within the jurisdiction of the Court of Justice. The proposal is a "draft legislative act"; as such a national parliament can send a reasoned opinion to the EU institution making the proposal stating why it thinks the proposal does not comply with the principle of subsidiarity. The Council has informed national parliaments that the deadline for reasoned opinions is 24 October 2010.

SUMMARY

22.7 The main changes to MLA procedures that would be brought by the draft Directive on a European Investigation Order are:

replacement of all existing instruments on obtaining evidence in the EU in so far as they deal with measures covered in the draft Directive, including the MLA Conventions[86] and the Framework Decisions on freezing orders and the EEW — see Article 29;
a new focus on the investigative measure to be executed rather than on the type of evidence to be collected (as in the Framework Decision on the EEW). Therefore, in accordance with the principle of mutual recognition, it is the issuing authority which decides on the type of investigative measure to be executed — see Article 8(1) and (2);
extension of MLA provisions to proceedings brought by administrative and judicial authorities for administrative offences carrying either civil or criminal penalties — see Article 4;
a reduction in the grounds on which to refuse to execute or recognise the request for MLA — see Article 10;
acceleration of the MLA procedures through mandatory deadlines (90 days to execute the order) — see Article 11, and
a right for the issuing authority to be present in the territory of the executing State to assist in the execution of the investigative measure — see Article 8(3).

CHAPTER 1: THE EUROPEAN INVESTIGATION ORDER

Article 1: Definition of the European Investigation Order and obligation to execute it

22.8 Paragraph 1 of this Article provides that a European Investigation Order (EIO) is a "judicial decision" issued by a "competent authority" for one or several specific investigative measures to be carried out; paragraph 2 that Member States are to execute an EIO on the "basis of the principle of mutual recognition;" and paragraph 3 that the Directive will not have the "effect of modifying" Member States' obligations to respect fundamental rights or "constitutional rules relating to the freedom of association, freedom of the press and freedom of expression in other media."

Article 2: Definitions

22.9 Article 2 provides for the definition of several concepts used in the proposal. The definition of the issuing and executing authorities is dealt with in Article 2(1) and (2). An "issuing authority" is either a judge, a court, an investigating magistrate or a public prosecutor as; or, in order to take into account different national systems, "another type of judicial authority as defined by the issuing State, and [in the case concerned] acting in its capacity as an investigating authority in criminal proceedings with competence to order the gathering of evidence". The Council's explanatory memorandum says that a Member State may for example designate a police authority as an issuing authority for the purpose of the EIO but only if that police authority has the power to order the investigative measure concerned at national level. This solution is said to be in line with existing MLA instruments and the Framework Decision on the EEW.

22.10 It is up to the Member States to decide which authority will be designated as an "executing authority" on the condition that it would be competent to undertake the investigative measure mentioned in the EIO. So 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.

Article 3 : Scope of the EIO

22.11 As one of the main objectives of this proposal is to facilitate cooperation in the gathering of evidence by replacing the existing instruments with a single framework, the EIO's scope is wide. Under paragraph 1 it covers "any investigative measure" subject to the limited exceptions listed in paragraph 2. The exceptions are setting up a Joint Investigation Team (JIT), the gathering of evidence within a JIT (which are regulated both in the 2000 EU MLA Convention[87] and in the 2002 Framework Decision[88]on joint investigation teams), interception of satellite telecommunications and interception of telecommunications with immediate transmission to the requesting State. Cooperation for the carrying out of these measures will still be possible under the existing rules in the 2000 EU MLA Convention (see Article 29). Only these types of interception of telecommunications are excluded from the scope of the EIO — standard interception of telecommunication is covered by Article 27 of the proposal.

Article 4: types of procedure for which the EIO can be issued

22.12 The EIO is designed for obtaining evidence in criminal proceedings, but it also covers some proceedings "brought by administrative authorities in respect of acts which are punishable under the national law of the issuing state by virtue of being infringements of the rules of law and where the decision may give rise to proceedings before a court having jurisdiction, in particular, in criminal matters." However, a ground for refusal has been inserted which provides for the possibility to refuse the execution of the EIO if the EIO has been issued for administrative proceedings (Article 10(1)(d)).

Article 5: content and form of the EIO

22.13 The EIO itself is the form provided in the Annex to the Directive, duly completed and signed by the issuing authority (Article 5(1)). The form is therefore not a "certificate" which accompanies a separate decision, as it is the case for several mutual recognition instruments (for example the Framework Decision on freezing orders): there is only one document to be transmitted by the issuing authority. This is the same as the EEW. As for languages (Article 5(2)), each Member State has to decide, as executing State, in which language EIOs will have to be transmitted to it.

CHAPTER II — PROCEDURES AND SAFEGUARDS FOR THE ISSUING STATE

Article 6: transmission and form of the EIO

22.14 Article 6 on the transmission and form of the EIO has the same content as Article 8 of the Framework Decision on the EEW which itself contains standard wording for mutual recognition instruments. All official communications have to be done through direct contacts between the issuing and executing investigative authorities (Article 6(1)). There is however a possibility to designate central authorities to assist the investigative authorities: they may be involved in the transmission and reception of the EIO but this only concerns the administrative tasks (Article 6(2)). The obligation to notify the use of a central authority is provided in Article 28(1)(c).

22.15 Other paragraphs concern the use of the European Judicial Network (Article 6(3)) and (4)), and, as with other mutual recognition instruments, under Article 6(6) competent authorities are encouraged to communicate directly to resolve difficulties.

Article 7: EIO related to an earlier EIO

22.16 Article 7 is based on Article 9 of the Framework Decision on the EEW. It provides for the possibility to issue an EIO to supplement an EIO previously transmitted (Article 7(1)). It also clarifies the fact that, if the issuing authority is present during the execution of the measure, it can, during this execution, hand a supplementary EIO directly to the executing authority. It is therefore not necessary that the supplementary EIO be issued in the issuing State nor to transmit the EIO via central authorities where they exist in accordance with Article 6(2).

CHAPTER III — PROCEDURES AND SAFEGUARDS FOR THE EXECUTING STATE

Article 8: Recognition and execution

22.17 Under Article 8(1)

"the executing authority shall recognise an EIO (…) without any further formality being required, and shall forthwith take the necessary measures for its execution in the same way and under the same modalities as if the investigative measure in question had been ordered by an authority of the executing State, unless that authority decides to invoke one of the grounds for non-recognition or non-execution provided for in Article 10 or one of the grounds for postponement provided for in Article 14".

22.18 The Council's explanatory memorandum provides an example of how Article 8(1) would work in practice. In the case of an EIO issued for the purpose of searching a house, the issuing authority is competent to decide whether or not the search of a house is a necessary measure in the case concerned. However, the nature of the search will be governed by the law of the executing State. If, however, the search of a house is possible at night in the issuing State but not in the executing State, Article 8(1) makes it possible for the executing authority to carry out the measure during daytime in accordance with its own legislation.

22.19 The explanatory memorandum continues:

"[t]he fact that the law applicable for the modalities of the carrying out of the measure is the law of the executing State may however create problems in terms of admissibility of evidence in the issuing State. Therefore, the proposal contains in Article 8(2) a rule which already exists in the 2000 EU MLA Convention and in mutual recognition instruments. It provides for a possibility for the issuing authority to indicate in the EIO which formalities will have to be complied with to ensure the admissibility of evidence. There is an obligation for the executing authority to comply with these formalities as long as they are not contrary to the fundamental rules of the executing State. This practical solution reconciles the need to ensure admissibility of evidence and the rule on applicable law".

22.20 Article 8(3) has not been seen before in MLA or mutual recognition instruments. It provides a legal basis for the presence of "one or several authorities of the issuing State" to be present at the execution of the EIO in order to provide assistance to the executing authorities. The explanatory memorandum comments that nothing prevents such presence in the existing instruments but the lack of explicit reference contributes to the fact that "this presence is not enough applied for or granted". Such presence may for example "be crucial to ensure admissibility of evidence or to issue supplementing EIOs in the course of the execution of a measure (see Article 7(2))". Article 8(3) also creates an obligation for the executing State to accept the presence of the issuing authority "provided that such participation is not contrary to the fundamental principles of law of the executing State". Recital 10 clarifies the fact it does not imply any law enforcement powers for the authorities of the issuing State in the territory of the executing State. Criminal and civil liability for acts committed by the persons concerned in the executing State is provided for in Articles 16 and 17.

Article 9 : recourse to a different type of investigative measure

22.21 Under Article 9(1) the executing authority may decide to have recourse to an investigative measure other than that provided for in the EIO when: a) the investigative measure indicated in the EIO does not exist under the law of the executing State; or b) the investigative measure indicated in the EIO exists in the law of the executing State but its use is restricted to a list or category of offences which does not include the offence covered by the EIO, or c) the investigative measure selected by the executing authority will have the same result as the measure provided for in the EIO by less coercive means. Article 9(1) is to be read together with Article 10(1)(c) which makes it possible to refuse the execution of the EIO if, in cases covered in Article 9(1), there is no alternative measure in the executing State.

Article 10: Grounds for non-recognition or non-execution

22.22 One of the main changes brought by this proposal compared to other MLA instruments and the EEW is a stricter limitation on the grounds of refusal. In existing MLA agreements, the list of grounds for refusal to execute the request is typically short but the grounds themselves are very wide, in particular with reference to "sovereignty" and "public order". The main provision in this regard is Article 2 of the 1959 Council of Europe Convention on Mutual Legal Assistance in Criminal Matters ("the 1959 MLA Convention"), which provides that:

"Assistance may be refused:

a if the request concerns an offence which the requested Party considers a political offence, an offence connected with a political offence, or a fiscal offence;

b if the requested Party considers that execution of the request is likely to prejudice the sovereignty, security, ordre public or other essential interests of its country."

22.23 Article 10(1) of the proposal limits the grounds for refusal to four cases.

The first one (a) refers to an "immunity or privilege" existing under the law of the executing State. If there is a likelihood that the immunity or privilege may be lifted within a reasonable time, the executing authority may decide instead to postpone execution in accordance with Article 14.
The second ground is copied from Article 9(1)(g) of the Framework Decision on the EEW. It makes it possible to refuse the execution of the EIO "if, 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". The Council's explanatory memorandum informs us that such grounds may be invoked only on a case by case basis.
If there is no alternative measure under Article 9, the execution of the EIO may be refused (Article 10(1)(c)).
The fourth ground for refusal relates to administrative proceedings (Article 4). The explanatory memorandum comments that "it is unreasonable to combine this application to administrative proceedings, which also exists in the Framework Decision on the EEW, together with an extension to all investigative measures. Some margin of manoeuvre should be left to the executing State in this respect". Therefore, the fact that the EIO is issued in the framework of administrative proceedings is as a possible ground for refusal.

22.24 Article 10(2) emphasises the need for proper consultation between the authorities involved before one of the above grounds for refusal is invoked.

Article 11: Deadlines for recognition and execution

22.25 The explanatory memorandum says that the proposal is expected to speed up the MLA procedure[89] by inserting a new principle that "the decision on the recognition or execution should be taken and the investigative measure should be carried out with the same celerity and priority as for a similar national case" (Article 11(1). It comments that "most of the current delays should be avoided if this principle is complied with, as should be the case in a common area of freedom, security and justice. This principle here takes the form of a legal obligation inserted in Article 11(1) and becomes the basis for this provision on deadlines for recognition and execution. The other rules are there to supplement this principle".

22.26 Articles 11(3) and (4) include specific time limits but Article 11(2) makes it clear that the executing authority should endeavour to execute the EIO in even shorter deadlines if requested in the EIO. It also adds an explicit possibility for the issuing authority to state that the measure must be carried out on a specific date. This may for example be useful when searches of premises have to be carried out simultaneously in several locations.

22.27 Article 11(3) provides a 30-day time limit for a decision to be taken on the execution or recognition of the EIO. Article 11(5) brings some flexibility, with the possibility to postpone the decision for a further 30 days having given notice and stated the reasons to the issuing State.

22.28 Article 11(4) provides a 90-day time limit for the carrying out of the measure itself; the 90-day period runs from the date of the decision in Article 11(3). There is also a possibility to prolong this period without any limitation. The explanatory memorandum comments: "[w]hile it must be possible to take within 30 to 60 days a decision on whether or not the EIO may be executed, and although it should be possible to carry out the measure within 3 months, the wide scope of the EIO in terms of investigative measures covered makes it necessary to allow for greater flexibility".

Article 12: Transfer of evidence

22.29 Under Article 12 the collected evidence is to be transmitted "without undue delay" to the issuing State and the executing authority may require the evidence to be returned. The Article also makes it clear that the issuing authority may request that the evidence be immediately transmitted to the authorities which are present during the execution of the EIO. The executing authority is obliged to comply with this request if it is possible under its national law.

Article 13: Remedies

22.30 Article 13 provides that legal remedies "shall be available for the interested parties in accordance with national law". The explanatory memorandum comments: "[a]s this proposal contains a general regime and does not distinguish between the types of investigative measures, it is not appropriate to provide in this proposal a single regime for legal remedies. It is however necessary, under the principle mutual recognition, to prevent that substantive reasons for issuing the EIO are challenged in an action brought before a court of the executing State".

Article 14: Grounds for postponement of recognition or execution

22.31 Article 14 provides standard wording in mutual recognition instruments to allow the postponement of the recognition or execution of the EIO. Such postponement is possible if the execution of the EIO would prejudice an ongoing criminal investigation or prosecution or if the evidence concerned is already used in other criminal proceedings. The postponement must be as brief as possible.

Article 15: Obligation to inform

22.32 Article 15(1) ensures that the issuing authority will, within a week of the reception of the EIO, receive information from the concerned executing authority confirming that the EIO has been received and that the procedure is ongoing. It will also enable the issuing authority to contact the executing authority directly, for example if it wishes to supplement the EIO with additional measures to be executed or with additional information.

22.33 Article 15(2) provides for other obligations for the executing authority to inform the issuing authority in the course of the procedure. These include information on the fact that the EIO is incomplete or manifestly incorrect, that additional enquiries may be appropriate, that the formalities or procedures requested by the issuing authority cannot be complied with, or that the execution of the EIO has been refused or postponed.

Article 16 and 17:[90] liability regarding officials

22.34 Because it is possible for officials of the issuing State to be present in the executing State in the course of the execution of an EIO, rules on their liability for the actions carried out in the executing state are necessary.

22.35 Article 16 deals with the commission of criminal offences by (or against) the officials of the issuing State and states that they should be treated as if they were officials of the executing State.

22.36 Article 17 provides for the civil liability of the officials of the issuing State for any damage caused by them. The explanatory report under Article 16 of the 2000 EU MLA Convention explains how this works in practice:

"the purpose of this Article is to provide arrangements for the satisfaction of civil claims that may arise from operations carried out by the officials of a Member State on the territory of another Member State (…). The basic rule that applies is that a Member State is liable for any damage that is caused by its officials during the operations concerned. However, the Member State where the damage was caused is required, in the first instance, to make good such damage on the same basis as if the damage had been caused by its own officials. In such an event, the other Member State must reimburse in full any compensation that has been paid out to victims of the damage or persons claiming on their behalf. Subject to such reimbursement and to any claims that it may make from third parties, for example the officials who carried out the operations, no further claims for reimbursement are permitted by the Member State where the damage occurred".

Article 18 : Confidentiality

22.37 Most EIO will contain information which has to be protected in order to safeguard the investigation. The same goes for information to be transmitted as part of the evidence collected in execution of the EIO. Paragraphs (1) to (3) of Article 18 oblige Member States concerned to take the necessary measures to ensure that both the issuing and the executing authorities preserve the confidentiality of information or alternatively inform each other when confidentiality requirements cannot be fully complied with.

22.38 Article 18(4) is based on Article 4 of the 2001 EU MLA Protocol.[91] It deals specifically with an EIO issued to obtain banking information (see Article 23 to 25). Article 18(4) commits the Member States take the necessary measures to ensure that banks will not disclose to the bank customer or to other third persons the fact that an investigation is carried out.

CHAPTER IV : SPECIFIC PROVISIONS FOR CERTAIN INVESTIGATIVE MEASURES

22.39 Although the proposal provides a single regime for obtaining evidence, additional rules are necessary for certain types of investigative measure. Most are already regulated by the 2000 EU MLA Convention and the 2001 EU MLA Protocol and are repeated here. In some case they include additional grounds for refusal to those set out in Article 10.

Articles 19 and 20: Temporary transfer to the issuing or executing State of persons held in custody for purpose of investigation

22.40 Article 19 relates to the situation where the issuing authority requests the presence in the issuing State of a person held in custody in the executing State ""in order to have an investigative measure carried out for which his presence [...] is required". Article 19(2) provides for additional grounds for non-recognition, based on Article 11 of the 1959 MLA Convention: the person in custody does not consent, or his presence is necessary at criminal proceedings pending in the territory of the requested Party or the transfer is liable to prolong his detention. Article 19(9) provides that costs arising from the transfer shall be paid by the issuing State 9as it is already the case under Article 20 of the 1959 MLA Convention).

22.41 Article 20, based on Article 9 of the 2000 EU MLA Convention, covers the temporary transfer of a person held in custody in the issuing State in order to have an investigative measure carried out for which his presence on the territory of the executing State is required. Article 20(2) provides for additional grounds for non-recognition.

Article 21: Hearing by videoconference

22.42 Article 21, based on Article 10 of the 2000 EU MLA Convention, generally applies to hearings of experts and witnesses, but may, under the particular conditions contained in Article 21(9), also be applied to hearings of defendants.

22.43 Article 21(1) makes it clear that an EIO may be issued in the issuing State to use videoconference to hear the evidence of a person who is in the executing State. The circumstances in which such EIO may be issued are that the issuing authority requires the person in question to be heard as a witness or expert and that it is "not desirable" or "not possible" for him or her to travel to that State for a hearing. In explaining "not desirable," the explanatory memorandum says that it could for example apply in cases where the witness is very young, very old, or in bad health; "not possible" could for instance cover cases where the witness would be exposed to serious danger by appearing in the issuing State.

22.44 As with the 2000 EU MLA Convention, a request for a hearing by videoconference may be refused if it would be contrary to the fundamental principles of the law of the executing State or the executing State does not have the technical means for videoconference. The explanatory memorandum explains that the reference to "fundamental principles of law" implies that execution of the EIO may not be refused for the sole reason that hearing of witnesses and experts by videoconference is not provided under the law of the executing State, or that one or more detailed conditions for a hearing by videoconference would not be met under national law.[92] Article 21(3) makes it clear that the technical means for videoconference may be made available by the issuing State.

22.45 The rules to be observed where a hearing takes place by way of videoconference are set out in Article 21(6).

22.46 Article 21(10) allows Member States to extend the application of this Article to videoconference hearings involving accused persons. However, there are additional grounds for refusal based on the absence of consent of the accused person to be heard by videoconference or that the execution of the EIO is contrary to the law of the executing State.

Article 22: Hearing by telephone conference

22.47 Article 22, based on Article 11 of the 2000 EU MLA Convention, sets out the arrangements to apply between the Member States in respect of requests relating to hearings by telephone conference. Article 22(2) provides two grounds for refusal in addition to those referred to in Article 10(1): if the use of the teleconference is contrary to fundamental principles of the law of the executing State or if the witness or expert does not agree that the hearing takes place by that method.

Article 23: information on bank accounts

22.48 Article 23 covers EIOs issued to obtain information on bank accounts held or controlled by a natural or legal person (an individual or company). It is based on Article 1 of the 2001 EU MLA Protocol. The obligation extends in Article 23(2) to being able to trace bank accounts throughout the territory of the executing State. This paragraph does not oblige Member States to set up a centralised register of bank accounts, but leaves it to each to decide how to comply with the provision. If the executing authority manages to trace a bank account in its territory it is under an obligation to provide the issuing State with the bank account numbers and all its details. Accounts that are controlled by the person under investigation include accounts of which that person is the beneficial owner. The concept of beneficial owner is defined in Article 3(6) of Directive 2005/60/EC on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing. A special provision applies (Article 23(3)) to accounts for which the person that is the subject of the proceedings has powers of attorney. They are not automatically covered. Article 23(4) clarifies that the obligation to supply information only applies to the extent the information is available to the bank keeping the account. Accordingly, the Council's explanatory memorandum says the proposal does not put any new obligations on Member States or banks to retain information relating to bank accounts. Article 23(5), based on the limitation found in Article 1 of the 2001 EU MLA Protocol, makes it possible to refuse the execution of the EIO if the offence does not carry a maximum sentence of at least four years in the issuing State and two years in the executing State.

22.49 Article 23(6) requires the issuing authority to consider carefully if the information "is likely to be of substantial value for the purpose of the investigation into the offence" and to state this expressly in the EIO, and also to consider carefully to which Member State or States it should send the EIO. The explanatory memorandum explains that this paragraph is intended to prevent "fishing expeditions." However, the executing authority is not permitted to question whether the requested information is likely to be of substantial value for the purpose of the investigation concerned.

Article 24: information on banking transactions in the past

22.50 Article 24 relates to EIOs issued to obtain information on bank accounts or banking transactions carried out in the past. It is based on Article 2 of the 2001 EU MLA Protocol. There is a link between Article 23 and Article 24 in that the issuing authority may have obtained the details of the account by means of the measure provided for in Article 23 and subsequently may ask for information on banking operations that have taken place on the account. However, the measure is self-standing and may also be decided in respect of a bank account that has become known to the investigating authorities of the issuing authority by any other means or channels.

22.51 Article 24(1) does not — as does Article 23 — make any references to accounts linked to a person that is the subject of a criminal investigation. This clarifies that the EIO may cover accounts held by third persons, persons who are not themselves subject of any criminal proceedings but whose accounts are, in one way or another, linked to a criminal investigation. Any such link must be accounted for by the issuing State in the EIO. A practical example is the situation where the bank account of an innocent, and totally unaware, person is used as a 'means of transport' between two accounts, which are held by the suspect, in order to confuse and hide the transaction. Article 24 allows the issuing authority to get information on any transactions to or from such an account.

22.52 The transactions on which information has to be provided are those carried out during a specified period through one or more accounts specified in the EIO. The information to be transmitted in the execution of such EIO also includes "the particulars of any sending or recipient account" (Article 23(1)). The remaining provisions largely mirror those in Article 23.

Article 25: monitoring banking transactions

22.53 Monitoring banking transactions that will take place in the future is a measure already covered by Article 3 of the 2001 EU MLA Protocol. However, as explained in the explanatory report of this Protocol, " this Article (…) only obliges Member States to set up the mechanism — Member States shall be able to provide the assistance upon request — but leaves to each Member State to decide if and under what conditions the assistance may be given in a specific case".

22.54 The Council's explanatory memorandum says that "such wide margin of manoeuvre is not in line with current developments of judicial cooperation in the EU, especially under the mutual recognition principle". So the procedures contained in Article 25 are more specific, although by dint of Article 27, which concerns gathering evidence in real time, there is some flexibility on refusing a request to monitor bank accounts. Article 25(1) provides for the possibility to issue an EIO in order to monitor banking transactions taking place in the future. Article 25(2) corresponds to the first sentence of Article 23(2). Article 25(3) corresponds to Article 24(4). Article 25(4) states that the practical details regarding the monitoring shall be agreed between the competent authorities of the issuing and the executing State.

Article 26: Controlled deliveries

22.55 Controlled deliveries are mainly used in investigations of offences of illicit trafficking. Article 73 of the 1990 Schengen Convention already deals with controlled deliveries but only for drug trafficking. It was extended to other forms of crime by Article 12 of the 2000 EU MLA Convention. The explanatory report to the 2000 EU MLA Convention states under Article 12 that: "The expression 'controlled delivery' has not been specifically defined in the Convention and it should be interpreted in accordance with national law and practice. The provision applies if, for example, the illicit consignment, with the consent of the Member States concerned, has been intercepted and allowed to continue with the initial contents intact or removed or replaced in whole or in part".

22.56 Article 26 allows an EIO to be used to execute a controlled delivery. General rules on the EIO are applicable so that it is not necessary to repeat the contents of Article 12 of the 2000 EU MLA Convention. The only specified rule is that the operation is always directed and controlled by the competent authorities of the executing State.

Article 27: Investigative measures implying gathering of evidence in real time, continuously and over a certain period of time

22.57 Article 27 encompasses several investigative measures which require gathering of evidence in real time, continuously and over a certain period of time. This includes for example the interception of telecommunications, the observation of a place or a person or an undercover operation. It also includes measures which are regulated by this proposal, such as controlled deliveries or the monitoring of banking transactions.

22.58 The use of these measures is necessary in many investigations, especially in organised crime or terrorism. The explanatory memorandum says it is therefore essential to cover them in this proposal: failing to do so would mean that judicial authorities would not be able to insert in a single document all investigative measures they want to see executed in another Member State. However, it goes on to say that these measures are also characterised by significant differences in the legislation of the Member States, and are often sensitive because they involve a limitation of fundamental rights, in particular privacy. This is why such measures have been subject to more flexible procedures in mutual legal assistance instruments. Article 27 follows a similar approach: it provides that an EIO may be issued for the purpose of carrying out these types of measures but that the execution may be refused if the use of this measure would not be authorised in a similar national case.

CHAPTER V : FINAL PROVISIONS

Article 29: Relations to other agreements and arrangements

22.59 Article 29 provides for the replacement of all existing instruments on obtaining evidence in the EU in so far as they deal with measures covered in the draft Directive, including the MLA Conventions and the Framework Decisions on freezing orders and the EEW.

The Government's view

THE MINISTER'S EXPLANATORY MEMORANDUM OF 25 MAY

22.60 The Minister of State at the Home Office (Baroness Neville-Jones) submitted an Explanatory Memorandum on this proposal on 25 May; this replaced a previous factual Explanatory Memorandum submitted on 5 May, during purdah.

The need for legislation

22.61 The Minister says that the Government will not commit to participating in this initiative unless it believes that there is a clear need for, and benefit to the UK in, such legislation. She comments that the Stockholm Programme had called for the establishment of comprehensive MLA regime and so a proposal for EU legislation is not unexpected and is in line with the EU's own work programme.

22.62 The EU Commission recently published a Green Paper on obtaining evidence in criminal matters from one Member State to another securing its admissibility. This was a consultation document soliciting the views of Member States on any future changes to the MLA system. The Commission is currently analysing the replies it has received and the Minister reports that it is continuing its work on a legislative proposal in spite of the introduction of this draft Directive.

Impact on UK law

22.63 The United Kingdom would need to bring forward secondary legislation under the European Communities Act 1972 in order to transpose and implement this Directive. At present where an incoming request for MLA asks for evidence to be obtained by the use of coercive powers such requests fall to be considered in accordance with the provisions of Part 1 of the Crime (International Cooperation) Act 2003 ('CICA'). If the United Kingdom opted in to this Directive amendments would need to be made to CICA so as to require requests from EU Member States for the use of such coercive powers to be considered in accordance with the terms of the Directive. As the Directive also touches on the transfer of prisoners for the purpose of assisting in a criminal investigation it may also be necessary to amend the provisions of UK domestic law which currently provide for the transfer of prisoners for this purpose. These provisions are found in CICA and in sections 5 and 6 of the Criminal Justice (International) Co-operation Act 1990.

Subsidiarity

22.64 The EIO concerns cross border judicial cooperation, and in particular MLA, between EU Member States which the Minister says is a matter appropriate for action at the Union Level. It would be difficult to achieve the same level of co-operation and common understanding through Member States acting unilaterally or concluding a range of bilateral instruments. So she concludes that the proposal is compliant with the principle of subsidiarity.

Fundamental Rights Analysis

22.65 The Government believes that the proposed Directive is fully compliant with the ECHR. A full analysis is provided at Annex A of the Explanatory Memorandum.

The need for legislation

22.66 The EU Commission recently published a Green Paper on obtaining evidence in criminal matters from one Member State to another securing its admissibility. This was a consultation document soliciting the views of Member States on any future changes to the MLA system. The Minister reports that the Commission is currently analysing the replies it has received and is continuing its work on a legislative proposal in spite of the introduction of this draft Directive.

Legal base

22.67 While Article 82(1)(a) is the current legal base on which the Directive is based, the Government's view is that Article 82(1)(d) is the more appropriate legal base. Article 82(1)(a) provides for the European Parliament and the Council to 'lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions' whereas Article 82(1)(d) provides for them to 'facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions'. Given the nature of MLA the Government would contend that Article 82(1)(d) is the more appropriate legal basis.

The role of central authorities

22.68 If the Article 82(1)(d) legal base were relied upon there is, however, a further issue as to the interpretation of the phrase 'equivalent authorities'. The Government's view is that the better argument is that this phrase should be construed to extend more widely than simply to cover organisations competent to issue binding judicial decisions otherwise the Article 82(1)(d) legal base would seem to add nothing to the Article 82(1)(a) legal base; however the issue is not free from doubt. If the phrase were construed narrowly this would potentially create policy difficulties for the UK.

22.69 The UK draws a very clear distinction between the recognition of a MLA request and its actual execution. This is why it is the role of the relevant central authority in the UK (acting on behalf of the Secretary of State) to make a decision to accede to an MLA request (in the EIO this would amount to recognition). The actual execution of the request (i.e. carrying out the required investigative measure) would then fall to the police (in most cases) or another law enforcement body. This is to ensure the independence of law enforcement bodies to as great an extent as possible and to ensure that issues such as national security are considered by the Secretary of State.

22.70 Article 2(b) as it is currently worded would require a change to the operation of MLA in the UK. The second sentence of this subparagraph provides that an executing authority must be able to actually execute the investigative measure requested. Article 8 subsequently provides that only an executing authority can recognise an EIO. Such a definition would not allow the central authority to recognise an EIO, as it could not carry out the investigative measure requested. However, the police would also be unable, according to the fundamental principles concerning the division of powers in the UK criminal justice system, to give proper consideration as to Article 10 and would thus also be unable to recognise the EIO. The Minister says that, clearly, this could be a problem. However, the Government believes that a number of countries are willing to reconsider the current draft relating to central and executing authorities.

22.71 An alternative solution could be for the central authority to continue to receive the requests and to then forward them to a judge for a decision on whether to recognise or refuse the EIO. This is the system currently provided for in sections 20 — 25 of the Crime (International Co-operation) Act 2003 to implement parts of the Framework Decision on the execution in the European Union of orders freezing property or evidence.[93] Another potential alternative may be to move the central authority to a law enforcement agency, similar to what has been planned in relation to Framework Decision on the EEW. Any issues related to national security would then be referred back to the Secretary of State.

Scope

22.72 The Minister comments that the scope of the EIO is very broad. It currently includes controlled deliveries and certain forms of intercept evidence and it is questionable whether these should form part of any proposal. For example, controlled deliveries are often organised at an operational level rather than through the formal MLA route. There is no clear reason given for why it is included in the EIO but cross border investigations, for example, are not. Both forms of assistance could be seen to raise public policy issues and a mutual recognition instrument may not be considered the most appropriate instrument for them.

Deadlines

22.73 The Minister reports that the Government holds no reliable data in this field but Metropolitan Police Service data suggest that the UK currently completes execution of MLA requests within this deadline in approximately 50% of cases. Respect of MLA deadlines is dependent on how the executing authority (police in most cases) prioritises cases and how much resource is allocated to handling incoming requests. The likely scenario is that EIO requests would be accorded a higher priority than MLA requests from other non EU Member States.

22.74 From the available data, the Government estimates that approximately 70 — 75% of outgoing UK MLA requests for evidence are sent to EU Member States. This amounts to approximately one thousand requests a year (this figure does not include requests sent supplementary to the original). The Minister therefore thinks that formal deadlines will be beneficial for investigators and prosecutors in ensuring that the evidence they request is received in a timely fashion. This is not always the case under the current system. She also reports that investigators and prosecutors expect that this would allow them to better manage their cases. This should enhance the quality of prosecutions. It is also likely that prosecutors will be more likely to issue requests given a standardised, user-friendly form.

Grounds for refusal

22.75 The Government will also need to consider whether the EIO allows States sufficient discretion to refuse requests — it would not wish to be compelled to act in a manner inconsistent with the national interest. In operating the 1959 and 2000 Conventions (through which the UK currently receives virtually all MLA requests from EU Member States) the Secretary of State maintains a general discretion as to whether or not to accede to a MLA request. In mutual recognition instruments there is no such general discretion to refuse to recognise and consequently the grounds on which an EIO could be refused are substantially reduced. The Minister notes that double jeopardy is not included as a ground for refusal; nor are incorrectly completed or plainly inaccurate EIOs, although in practice, although such a request would not be refused, its execution would be frustrated. She also comments that there is also no basis for refusing a request on the grounds of proportionality.

22.76 Human rights are not specifically included as a ground for refusal but Article 1(3) of the Directive makes it clear that nothing in the Directive shall have the effect of modifying the obligations on Member States to respect the fundamental rights and fundamental legal principles enshrined in Article 6 of the TEU. Article 6 makes it clear that rights as guaranteed by the ECHR are to be regarded as general principles of EU law. On this basis the Minister reports that the Government's view is that it is clear that neither the UK nor other EU Member States could act in a manner contrary to the ECHR and that any request to do so would have to be refused.

Financial implications

22.77 The Minister says it is clear that costs in relation to bringing forward secondary legislation to transpose and implement the Directive would be incurred. However, these would be met from the existing Home Office budget. However, the other financial implications in relation to this proposal vary greatly depending on the outcome of negotiations in relation to the role of central authorities and deadlines. Annex B to the Explanatory Memorandum contains detailed costs in relation to incoming requests. Although not an impact assessment this has been prepared mostly using the standard forms for ease of reference and to provide as much detail as is possible at this stage.

22.78 The Minister tells us that it is not possible to quantify the effects of formal deadlines and the introduction of a standardised form to outgoing requests and its impact on investigations and prosecutions. However, receiving evidence from other EU Member States in a timely fashion is likely to be beneficial to those investigations and prosecutions and result in cases being disposed of quicker. The introduction of standardised forms is likely to increase both the numbers of MLA requests received from EU countries and those that are made by the UK which will inevitably have cost implications.

22.79 She then outlines a series of possible costs, all of which assume that the deadlines currently envisaged by the draft EIO remain as they are and which are based on average annual costs over a ten year period The Home Office would only expect to meet costs that fall to the Home Office, not those of other agencies and departments. The figures relate to the UK receiving and executing MLA requests from other EU countries and although as accurate as the Government believes they can be at this stage it accepts that eventual figures may not match these exactly.

Not opting in to the EIO: £3.1 million — £4.6 million.
Opting in to the EIO and maintaining the current role of central authorities: £3.8 million — £5.7 million.
Opting in to the EIO and requiring judges to make decisions on recognition and refusal of an EIO: £3.9 million — £5.9 million.
Opting in to the EIO and transferring the role of a central authority to a law enforcement agency: £3.9 million — £5.8 million.

22.80 These costs are currently an unfunded pressure but will be factored into the 2012/13 spending review, which is the first year any changes resulting from the EIO would be likely.

STATEMENT TO THE HOUSE

22.81 On 27 July the Secretary of State for the Home Department (Mrs Theresa May) made a statement to the House confirming that the UK would be opting into the Directive:[94]

"The Government have decided to opt into the EIO because it offers practical help for the British police and prosecutors, and we are determined to do everything we can to help them cut crime and deliver justice. That is what the police say the EIO will do. We wrote to every Association of Chief Police Officers force about the EIO, and not one said that we should not opt in. ACPO itself replied that

"'the EIO is a simpler instrument than those already in existence and, provided it is used sensibly and for appropriate offences, we welcome attempts to simplify and expedite mutual legal assistance'

"However, I know that some hon. Members have concerns about the EIO, and I should like to address them in turn. The first is on the question of sovereignty. In justice and home affairs, there are many ideas coming out of Brussels, such as a common asylum policy, that would involve an unacceptable loss of sovereignty. I want to make it absolutely clear to the House that I will not sign up to those proposals, and I have made that clear to my European counterparts. However, the EIO directive does not incur a shift in sovereignty. It is a practical measure that will make it easier to see justice-British justice-done in this country.

"The second concern is about burdens on the police. At a time when we are reducing domestic regulatory burdens on the police, I agree that it would be unacceptable to have them re-imposed by foreign forces. That is why we will seek to ensure that there is a proportionality test, so that police forces are not obliged to do work in relation to trivial offences, and that forces will be able to extend deadlines when it is not possible to meet them. I want to be clear that the EIO will not allow foreign authorities to instruct UK police officers on what operations to conduct, and it will not allow foreign officers to operate in the UK with law enforcement powers.

"The third concern is about legal safeguards. We will seek to maintain the draft directive's requirement that evidence should be obtained by coercive means, for example through searching premises, only where the dual criminality requirement is satisfied. Requests for evidence from foreign authorities will still require completion of the same processes as in similar domestic cases. In order to search a house, for example, police officers will still need to obtain a warrant.

"The execution of the EIO must be compatible with the European convention on human rights. That means that there must be a clear link between the alleged criminality and the assistance requested, otherwise complying with the request would be in breach of article 8 of the ECHR, on private and family life.

"By opting in to the EIO at this stage, we have the opportunity to influence its precise content. We know that the existing draft is not perfect, and we are confident that we will be able to change it in negotiations. My noble Friend Baroness Neville-Jones has already had discussions with her German counterpart, and we are confident that we will shape the draft directive so that it helps us to fight crime and deliver justice while protecting civil liberties and avoiding unduly burdening the police. That is why the civil liberties group, Justice, says that

"'on balance it is better for the UK to engage in this area than be ousted onto the periphery of evidence in cross border cases.'

"I ask hon. Members to remember this: the EIO will apply to both prosecutors and defence lawyers, which means that it can be used to prove British subjects innocent abroad, as well as to prosecute the guilty at home.

"The EIO will allow us to fight crime and deliver justice more effectively. It does not amount to a loss of sovereignty. It will not unduly burden the police. It will not incur a loss of civil liberties. It is in the national interest to sign up to it, and I commend this statement to the House."

Consultation

MINISTER'S LETTER OF 21 JULY

22.82 The Minister wrote on 21 July enclosing responses to the Government's ongoing consultations.[95] The Child Exploitation and Online Protection Centre welcomes the proposal because child exploitation is very often trans-national and this proposal will speed up cooperation between EU enforcement agencies. It supports in particular a standardised form for issuing requests and the imposition of deadlines. It thinks the Government should opt into the proposal because not to do so would mean that UK requests would not be priorities in the other EU Member States, and this would impede UK investigations. Finally, it says that obtaining electronic evidence can be complex; where an offender resides in one Member State and the server is held in another, clarity over which Member State should receive the EIO is necessary.

22.83 The Metropolitan Police Service (MPS) comments that many investigations are transnational and much of the evidence is held overseas. Current systems used to gather such evidence, for example International Letters of Request, are cumbersome, slow and often result in evidence not being obtained in time for trial. The EIO seeks to address this issue by setting time limits around such requests which will allow police officers and prosecutors to plan their evidence gathering, ensuring that all parties including, crucially, the courts are apprised of how long it will take to gather such evidence. The EIO is a simpler instrument than those already in existence. Because of this, it anticipates that the use of the EIO by the MPS and all UK police forces will increase as officers become aware of how simple the process is likely to become. Equally, requests into the UK are certain to increase.

22.84 In the MPS's view the UK should seek to negotiate a position whereby proportionality is considered, and that only matters of certain gravity be subject to the EIO. The gravity factors could be negotiated EU wide or it could be left to the receiving country to make the assessment subject to agreed guidelines and include factors such as severity of the offence, threat to life issues or impending court appearance. The EU has found that use of the European Arrest Warrant has been complicated by requests for fugitives suspected of low level offences. Police and CPS / HMCS resources are stretched in dealing with the amount of EAWs received where no proportionality filter is considered. The EIO is likely to become an inefficient instrument should it go ahead without a proportionality clause and, on projected volumes, we are likely to miss the deadline in a significant proportion of lower level requests.

22.85 The Law Society of England and Wales does not believe that the new proposal clearly demonstrates a need for change or an "added-value" in comparison with the current regime. It has been argued that the greatest problems experienced in the current system relate to a lack of resources and prioritisation, which are issues that should be addressed by Member States themselves rather than through legislation. Some legal practitioners have however commented that the broad scope of the EIO could be preferable to the current system with a variety of different mutual legal assistance ("MLA") and mutual recognition instruments currently in force. Some have also argued that the drafting in the EIO could be preferable to that in the EEW, especially taking into account that, in contrast to the EEW, the EIO contains a general provision for legal remedies.

22.86 The Law Society believes that the principle of proportionality should be expressly incorporated. Article 9(1)(c) provides for an executing Member State to carry out an investigative measure by "less coercive means". It believes that instead there should be a positive test that enables the executing Member State to choose the most appropriate measure taking account of this principle. It also believes that a de minimis rule should also be included which:

takes account of the seriousness of the offence in the issuing Member State to avoid the issuance of EIOs for disproportionately minor offences; and
aims to avoid attempts at evidence-gathering by excluding cases where there is virtually no chance of conviction.

22.87 It reports that practitioners particularly drew on their experiences in regard to the European Arrest Warrant (EAW). Many felt that there was no means of limiting when an EAW could be issued. This has led to a large number of EAWs being issued for minor offences, with Poland being cited as a country where there was an obligation to prosecute even insignificant cases. Practitioners are concerned that there could be further legal principles in other Member States that do not exist in the legal system of England and Wales that could impact on the usage of the new EIO. The Society therefore calls for a full impact assessment of the effects of the proposal on Member States.

22.88 The Society believes that the EIO should be available both to the prosecution and defence teams in criminal cases. This relates to a general need to ensure equality of arms between prosecution and defence. An application could be made by the defence to the competent judicial authority for an EIO.

22.89 On compatibility with fundamental rights, the Society is concerned that there does not appear to be sufficient clarity about whether practitioners representing defendants would be able to challenge an EIO. Article 13 provides that "legal remedies" shall be available for the interested parties in accordance with national law of the issuing Member State and appears to apply to the whole proposal. Whilst the Society welcomes the provision for legal remedies, it notes that there is a lack of detail. The Society is also concerned that the new deadlines for recognition and execution provided for in Article 11 could in reality be problematic in ensuring adequate representation of defendants. The Society would like to see safeguards to ensure that time limits could be extended to ensure sufficient time for notification of defendants, for applications to be made for legal aid and for evidence gathering by defence teams.

22.90 The Society notes that Article 8(2) concerning recognition and execution refers directly to the need for compliance with the principles of fundamental rights in the executing Member State. Although it is a general requirement of European law that fundamental rights be respected, the Society would support widening the reference to apply to Article 10 concerning grounds of non-recognition and non-execution.

22.91 The Society believes that the grounds provided for non-recognition or non-execution of the EIO by executing authorities are too narrow. The Society believes strongly that the following categories should be added: exclusion of evidence requests that could lead to the identification of informants; exclusion of information covered by legal professional privilege; and exclusion of evidence requests contrary to fundamental rights.

22.92 A summary of the views expressed by Justice, a human rights and law reform organisation, are:

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;
to ensure requests are adhered to in accordance with the ECHR, EU Charter on Fundamental Rights (EU Charter) and in particular the fundamental rights of a fair trial, it is necessary for all requests to be granted by a judicial authority, akin to prior framework decisions and the European arrest warrant in particular. An independent and impartial judge can verify that a request complies with national law and ECHR obligations. The appropriate test is already required at the issuing stage pursuant to article 7 EEW;
a necessity and proportionality test is required, as in the framework Decision on 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, as in the EEW;
additional safeguards are required for particular special provisions;
data protection requires careful consideration of Article 8 ECHR considerations and should be recognised in the directive; and
the UK should opt in to the instrument but in doing so should engage its negotiating position to ensure that the omission of these vital safeguards is rectified.

22.93 Fair Trials International does not support the proposal as it stands. It believes the UK should use its influence to persuade the Member States who initiated the EIO proposal to withdraw it and insist on a thorough impact assessment exercise. This would allow the Commission to continue its work in line with the timetable it originally proposed. Only in this way can the substantial implications and likely costs be understood and an informed debate take place, at EU and national level, on any resulting legislative proposal.

22.94 It questions the appropriateness of replacing all existing evidence-gathering measures with a new instrument based on mutual recognition. This is questionable given:

the absence of a coherent EU-wide data protection regime in the criminal context the wide variance in standards of evidence-gathering and evidence-handling in Europe;
the lack of any basic common standards in evidence-gathering and evidence handling in Europe;
the fact that there has as yet been no implementation of basic minimum procedural defence safeguards, with only one measure having been passed (at the time of writing), which is not due for implementation until July 2013.

22.95 Lessons must be learned from the European Arrest Warrant about the risks of over-rigid mutual recognition based instruments without the necessary accompanying protection of, and respect for, fundamental rights across all Member States. Fair trials International is concerned that an instrument in the form proposed would risk a substantial increase in the number of evidence requests received and a consequent increase in the costs and resources needed to deal with them. It is far from clear that there would be a net benefit to the UK and the risk of fundamental rights infringements will also increase.

22.96 Additional safeguards are needed to protect fundamental rights in the evidence gathering process. These include the implementation of common basic standards on evidence-gathering across the EU; the consideration of the proportionality and necessity of any request for evidence; the allocation of sufficient time and facilities to deal with all necessary evidence requests (including those for evidence reasonably requested by the defence); the need to safeguard evidence and keep a detailed audit trail throughout the process, and to ensure that where interviews take place by telephone or videoconference, all original recordings are kept until the case has been finally disposed of.

22.97 It has specific concerns about the EIO proposal including:

the lack of express refusal grounds in key areas, such as
- breach of fundamental rights;
- proportionality (the offence is trivial and/or the request would involve disproportionate use of resources or unnecessary infringement of privacy or other fundamental rights);
- double jeopardy (the person being investigated has already been tried for the same offence)territoriality (the alleged offence was not committed in the issuing but in the executing State);
- territoriality (the alleged offence was not committed in the issuing but in the executing State);
the absence of a dual criminality requirement, meaning one State could be required to investigate conduct it does not itself treat as criminal;
the lack of protection for individuals in custody who are transferred to other States for questioning;
the absence of necessary safeguards relating to evidence given via telephone and videoconferencing; and
the absence of provisions enabling the defence to request an EIO to be issued where necessary in the interests of justice.

Conclusion

22.98 We thank the Minister for her Explanatory Memorandum and letter.

22.99 There does not appear to have been a full impact assessment on the necessity for this draft legislative act. We note that Article 5 of the Protocol on subsidiarity and proportionality states that:

"any draft legislative act should contain a detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality. This statement should contain some assessment of the proposal's financial impact and, in the case of a directive, of its implications for the rules to be put in place by Member States, including, where necessary, the regional legislation. The reasons for concluding that a Union objective can be better achieved at Union level shall be substantiated by qualitative and, wherever possible, quantitative indicators. Draft legislative acts shall take account of the need for any burden, whether financial or administrative, falling upon the Union, national governments, regional or local authorities, economic operators and citizens, to be minimised and commensurate with the objective to be achieved".

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 above will be complied with and when we can expect to see the detailed statement.

22.100 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.

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

22.102 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 Faire 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.

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

22.104 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.

22.105 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.

22.106 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.

22.107 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.

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

22.109 The proposal remains under scrutiny pending the Minister's replies, which we would be grateful to receive as soon as possible.

22.110 We clear document a), which was superceded by the current proposal, document b), from scrutiny.

82 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

83 2003/577/JHA of 22 July 2003. Back

84 2008/978/JHA of 18 December 2008. Back

85 See headnote. Back

86 See footnote 82. Back

87 Article 13. Back

88 2002/465/JAI of 13 June 2002. Back

89 Article 5(4) of the 2000 EU MLA Convention already brought some improvement by making it mandatory, when the requested authority knows that it will not be able to meet the time limits indicated in the request, to contact the requesting authority and to provide it with indication of the estimated time needed for the execution. There was however no mandatory rule on the length of the procedure.

Back