Annex 2 — Overview of the 35 measures
This Table provides an overview of the 35 measures
that the Government proposes to rejoin and includes (in the second
column) cross-references to the relevant page numbers of Command
Papers 8671 and 8897 and paragraph numbers of our Report, The
UK's block opt-out of pre-Lisbon criminal law and policing measures
(HC 683).[37] The fourth
column sets out the Government's position based on the information
contained in its Impact Assessments. Those produced by the Home
Office and Her Majesty's Revenue and Customs include a summary
and recommendation which we reproduce in our table. The Ministry
of Justice Impact Assessments take a different form so we have
reproduced the section setting out the net impact of each measure.
| MUTUAL RECOGNITION MEASURES
|
| Measure
| References to Cm 8671, Cm 8897 and HC 683
| Purpose and content of measure
| Impact Assessment: Government's summary or analysis of net impact
|
Mutual recognition of confiscation orders
Framework Decision 2006/783/JHA
| 8671
p.70
8897
p.105
HC 683
paras 145-150
| Establishes simplified procedures for mutual recognition of confiscation orders for proceeds of crime without verification of dual criminality. Proceeds confiscated are split between the executing and requesting States.
| This measure should lead to the confiscation of a greater volume of criminal assets. This has both a criminal justice impact, in that criminals will be deprived of their proceeds, and an economic benefit in that money will be recovered for use for other purposes. Opting-into the measure will also clearly indicate to the international community and individual partners the importance that the UK places on recovering the proceeds of crime (p.111).
|
Mutual recognition of financial penalties
Framework Decision 2005/214/JHA
| 8671
p.127
8897
p.183
HC 683
paras 151-158
| Obliges Member States to collect financial penalties transferred by other Member States, with a proportion of the penalty being allocated to the collecting Member State.
| As other Member States have not yet implemented the measure, it has not been possible to determine the overall financial outcome of rejoining. In overall terms we think the financial costs and benefits of opting out or into the measure are fairly evenly balanced and not substantial in magnitude. However, there are public confidence benefits to rejoining that it has not been possible to quantify. The Government is encouraging the use of financial penalties for minor crimes (in absentia if the offender does not return for trial) and for the financial penalty to be sent to the UK to be enforced (via this measure) rather than requiring the UK to send the person back (under the European Arrest Warrant — EAW). This could in theory lead to fewer EAWs than would be the case if the UK did not participate in the measure, although there is little evidence that this has happened to date (p.188).
|
European Arrest Warrant
Framework Decision 2002/584/JHA
| 8671
p.94
8897
p.45
HC 683
paras 107-131
| Expedites the extradition process between EU Member States using the principle of "mutual recognition" and removing previous barriers to extradition (including, in a wide range of areas, the fact that the alleged offence is not criminal under the law of the extraditing Member State, as well as barriers relating to nationality and limitation periods).
| The preferred option is to rejoin the European Arrest Warrant (EAW) and the second generation Schengen Information System (SIS II). Once SIS II and the National Crime Agency's SIRENE Bureau[38] are operational, the UK will have access in 'real time' to all EAWs issued by other Member States and information relating to all other law enforcement alerts. This would maximise the UK's ability to identify and arrest people who pose a threat to public safety and security and make sure that they are brought to justice (p.72).
|
Taking account of previous criminal convictions
Framework Decision 2008/675/JHA
| 8671
p.129
8897
p.122
HC 683
paras 159-166
| Requires national courts to take into account a defendant's previous convictions in another Member State in the same manner (and for the same purposes of sentencing and resisting bail applications) as previous national convictions.
| It is recommended that the UK seeks to rejoin this measure and ECRIS (see below under measures for the exchange of information). Participation in ECRIS provides the UK with the full offending history of UK nationals and the serious offending history of EU nationals. This information can be used in court to determine sentencing or the granting of bail. It further supports public protection as regards deportation and removals and in determining if individuals should be, or are already on the sex offender register. It allows employers to run pre-employment checks and to check the history of those working with children and vulnerable adults. This measure (taking account of previous criminal convictions) provides legal certainty that foreign convictions will be used in UK courts and that UK convictions are taken into account in foreign proceedings (p.135).
|
Transfer of prisoners — mutual recognition of judgments imposing a custodial sentence
Framework Decision 2008/909/JHA
| 8671
p.130
8897
p.203
HC 683
paras 167-181
| Enables the transfer of Foreign National Offenders (FNOs) to their home country in the EU to serve their custodial sentence.
| The net impact of the measure over a 10-year appraisal period from 2015-24 would range between £20m and £170m, with a main estimate of £110m. The overall impact of full implementation of the measure is therefore likely to be positive because the benefits of being able to send prisoners back to their home country without their consent would outweigh the combined costs incurred (a) from deportation and appeals, and (b) from receiving and imprisoning British national offenders (p.210).
|
Mutual recognition of judgements given in criminal proceedings where the defendant was absent (in absentia judgments)
Framework Decision 2009/299/JHA
| 8671
p.135
8897
p.228
HC 683
paras 182-189
| Requires mutual recognition of judgments given in absentia, enhances procedural safeguards for defendants, and amends various other underlying measures, including the EAW.
| If the UK did not participate in this measure, there is a risk that courts in other Member States may refuse to recognise judgments by UK courts where the person was tried in their absence. The measure ensures that fewer criminals will be able to evade justice by arguing that their conviction was unfair, and by preventing Member States from declining to recognise judgments and judicial decisions flowing from instruments of mutual recognition where a person has been tried in absence. It will facilitate security by improving the administration of justice across borders (p.232).
|
Mutual recognition of pre-trial supervision orders (the European Supervision Order)
Framework Decision 2009/829/JHA
| 8671
p.136
8897
p.217
HC 683
paras 190-200
| The European Supervision Order (ESO) enables the supervision of a pre-trial non-custodial measure (e.g. supervised bail) to be undertaken in the home Member State rather than in the Member State in which the crime is alleged to have taken place.
| The net impact of implementing the ESO over a 10 year appraisal period from 2015-24 is estimated at £28m under a realistic set of assumptions. The overall impact is subject to a range of assumptions. A range of additional sensitivity tests have been undertaken to account for uncertainty. The non-monetised impacts are also broadly positive. The ESO could lead to an increase in cooperation between Member States. The possibility of suspects returning to their home country while awaiting trial (both in the UK and other Member States) promotes social benefits such as reunion with family and continuing their normal home life, work or study rather than being held on remand or bailed abroad. Thus, ESO offers potential for a positive effect on the civil liberties and rights of those accused (p.225).
|
| MEASURES FOR THE EXCHANGE OF INFORMATION
|
| Measure
| References to Cm 8671, Cm 8897 and HC 683
| Purpose and content of measure
| Impact Assessment: Government's summary or analysis of net impact
|
Exchange of information between financial intelligence units
Council Decision 2000/642/JHA
| 8671
p.55
8897
p.26
HC 683
paras 202-213
| Enables the improved disclosure and exchange of financial information between Member States' Financial Intelligence Units to combat money laundering.
| The UK already has, within the National Crime Agency (NCA), a function with existing capacity and capability to collect and assimilate intelligence. Significantly for this measure, the NCA also has the statutory ability and operational capability to liaise with other countries to share and collect financial intelligence. This measure provides a formal process to communicate with Member States and provides a requirement for Member States to comply with our requests which would otherwise not exist. The UK Government recommends opting into this measure as it accords with and further strengthens the UK's own policy relating to financial intelligence and criminal finances more generally, in particular relating to money laundering and asset recovery. The UK also supports international efforts at ensuring the right criminal justice outcome of disrupting the flow of criminal money (p.31).
|
Exchange of information and intelligence between Member States' law enforcement authorities (the "Swedish initiative")
Framework Decision 2006/960/JHA
| 8671
p.70
8897
p.97
HC 683
paras 214-223
| Provides a systematic and time-bound process for the exchange of information between national law enforcement bodies for the purposes of criminal investigation and prosecution.
| It is recommended that the UK seeks to rejoin this measure and the Council Decision on cooperation between Asset Recovery Offices (see below). Participation will allow the UK's Asset Recovery Office (ARO) to continue its work to disrupt and isolate the proceeds of crime and recover assets as quickly as possible before they are liquidated or moved out of the UK. The UK's ARO regards the "Swedish initiative" as a highly useful tool to assist them in their duties (p.104).
|
Cooperation between Asset Recovery Offices
Council Decision 2007/845/JHA
| 8671
p.72
8897
p.97
HC 683
paras 224-230
| Requires Member States to cooperate through a system of national Asset Recovery Offices (AROs) using a time-bound process for the exchange of financial information to trace proceeds of crime and other crime-related assets.
| It is recommended that the UK seeks to rejoin this measure and the "Swedish initiative" (see above). Participation will allow the UK's Asset Recovery Office (ARO) to continue its work to disrupt and isolate the proceeds of crime and recover assets as quickly as possible before they are liquidated or moved out of the UK. The UK's ARO regards the "Swedish initiative" as a highly useful tool to assist them in their duties (p.104).
|
European Image Archiving System (FADO)
Joint Action 98/700/JHA
| 8671
p.87
8897
p.17
HC 683
paras 231-238
| Establishes an EU-level computerised image archive of falsified and authentic identity documents.
| Opting back into this measure will continue to bring increasing levels of awareness and detections of false documents and identity fraud, both at UK borders and elsewhere. This will increase detection of crime and thus the ability to prevent it. The capital, financial and human resource costs of hardware, software and of data entry have been absorbed, and running and maintenance would continue at a stable level. The benefits of opting into this measure are judged to be greater than the costs (p.25).
|
Exchange of information on criminal records (ECRIS)
Framework Decision 2009/315/JHA and Council Decision 2009/316/JHA
| 8671
p.112
8897
p.122
HC 683
paras 239-257
| Establish an electronic system for the exchange of information on criminal convictions. The European Criminal Records Information System (ECRIS) enables Member States to obtain a full offending history for foreign (EU) nationals being prosecuted in their courts. The Council Decision establishes ECRIS; the Framework Decision set out the legal requirements for the transfer of information and the use of the ECRIS database.
| It is recommended that the UK seeks to rejoin these measures and the Framework Decision on taking into account previous criminal convictions (see above under mutual recognition measures). Participation in ECRIS provides the UK with the full offending history of UK nationals and the serious offending history of EU nationals. This information can be used in court to determine sentencing or the granting of bail. It further supports public protection as regards deportation and removals and in determining if individuals should be, or are already on the sex offender register. It allows employers to run pre-employment checks and to check the history of those working with children and vulnerable adults. The Framework Decision on taking into account previous criminal convictions provides legal certainty that foreign convictions will be used in UK courts and that UK convictions are taken into account in foreign proceedings (p.135).
|
Protection of personal data
Framework Decision 2008/977/JHA
| 8671
p.133
8897
p.196
HC 683
paras 258-265
| Provides a high level of protection for personal data processed for the purposes of police and judicial cooperation in criminal matters.
| Quantification of the net impact is not possible. However, qualitative analysis of the available information suggests the net impact of rejoining this measure is positive. The UK would benefit from avoiding potentially large gaps in data sharing, which could impact heavily on the effective running of the UK justice system. This would outweigh the costs of legislating and continuing to follow the current guidance on the areas not covered in the UK's Data Protection Act 1998 (p.201).
|
Customs Information System
Council Decision 2009/917/JHA
| 8671
p.151
8897
p.242
HC 683
paras 266-274
| Establishes an electronic Customs Information System (CIS) to be used by national customs authorities to assist them in detecting, investigating and prosecuting customs crimes.
| Opting in to the measure would enable the UK to continue cooperation between Member States. Without it, UK customs authorities would not be able to exchange information or have access to the rich source of EU-wide case data to enhance its own analysis. Therefore the preference is to opt into the CIS (p.248).
|
| CROSS-BORDER COOPERATION MEASURES: NETWORKS, CONTACT POINTS, DIRECTORIES
|
| Measure
| References to Cm 8671, Cm 8897 and HC 683
| Purpose and content of measure
| Impact Assessment: Government's summary or analysis of net impact
|
Security in connection with football matches with an international dimension
Council Decisions 2002/348/JHA and 2007/412/JHA
| 8671
p.104
8897
p.38
HC 683
paras 282-291
| Sets up the National Football Information Points to coordinate and facilitate international police cooperation and information exchange regarding football matches with an international dimension.
| The Government recommends rejoining both measures. They provide an established and functioning network that helps to reduce large scale football disorder through the provision of intelligence between Member States. The system encourages an effective exchange of appropriate information by simplifying and standardising the processes. This allows police forces, both domestic and international, to effectively and efficiently police football games, thus ensuring the safety of non-risk football supporters (p.44).
|
European Judicial Network (cooperation in criminal matters)
Council Decision 2008/976/JHA
| 8671
p.73
8897
p.112
HC 683
paras 521-522
| A new addition to the list of 35.
Establishes a network of national contact points with expertise in mutual legal assistance to improve judicial cooperation in combating serious crime.
| The European Judicial Network seeks to improve judicial cooperation between EU Member States both at the legal and practical level by bringing together experts in mutual legal assistance and judicial process. To opt in would bring a net benefit, through non-monetised benefits, over 10 years; the recommendation is therefore to opt into the measure (p.118).
|
| OTHER CROSS-BORDER COOPERATION MEASURES
|
| Measure
| References to Cm 8671, Cm 8897 and HC 683
| Purpose and content of measure
| Impact Assessment: Government's summary or analysis of net impact
|
Evaluation of implementation of EU instruments to combat organised crime
Joint Action 97/827/JHA
| 8671
p.86
8897
p.11
HC 683
paras 293-300
| Establishes a peer evaluation mechanism to assess Member States' implementation of EU measures designed to combat serious organised crime.
| To date, the UK has participated in all peer evaluations recommended by the GENVAL working group.[39] By opting back into this measure, the UK will continue to exchange best practice, have influence over the operation of important measures in other Member States, and greater control over peer evaluations and their outcomes (p.16).
|
Combating child pornography on the internet
Council Decision 2000/375/JHA
| 8671
p.88
8897
p.32
HC 683
paras 309-315
| Sets out how Member States should cooperate in combating online child abuse through appropriate law enforcement responses and international and industry cooperation.
| The Government recommends seeking to rejoin this measure. There are no costs associated with opting back in, and the UK is already fully compliant with its requirements. The UK would continue to tackle indecent images of children in the same manner as at present. However, participation in this measure helps extend the UK's influence and encourages Member States to act upon UK intelligence. By ensuring that UK intelligence is effectively acted upon in other Member States, the UK is able to better tackle domestic cases of indecent images of children (p.37).
|
Joint supervisory data protection bodies
Council Decision
2000/641/JHA
| 8671
p.125
8897
p.178
HC 683
paras 325-330
| Establishes a single, independent joint secretariat for the joint supervisory data protection bodies set up under the Europol Convention, the Convention on the Use of Information Technology for Customs Purposes and the Schengen Convention.
| Quantification of the net impact is not possible. However, the Government's analysis suggests that the net impact of rejoining the measure is positive. The UK would benefit from avoiding the risks of potentially large reductions in data sharing and any costs associated with attempting to mitigate this risk (p.182).
|
Schengen instruments
Schengen Implementing Convention 1990 (specified Articles only) and Council Decisions 2000/586/JHA and 2003/725/JHA
| 8671
p.14
8897
p.166
HC 683
paras 331-353
| The Schengen Implementing Convention 1990 establishes the framework for cooperation within the Schengen area. The two Council Decisions amend provisions of the Convention in which the UK has elected to participate. These include provisions on cross-border surveillance, the sharing of criminal intelligence, the secondment of liaison officers, the double jeopardy principle, extradition and the enforcement of criminal judgments involving EFTA States (Norway, Switzerland, Iceland and Liechtenstein), the illicit trade in drugs, and data protection.
| The Government recommends seeking to rejoin the Schengen Convention, and associated measures. Opting back in brings benefits in the form of Article 40 requests, establishing a quicker and more cost-effective process to request cross-border surveillance, and underpins a host of other police and criminal justice measures, including SIS II (see below). Participation helps the UK effectively tackle serious organised crime and terrorism, which is a priority for the Government (p.174).
|
Schengen Information System (SIS II)
Council Decision 2007/533/JHA
| 8671
p.26
8897
p.45
HC 683
paras 362-369
| SIS II enables the immediate sharing between national law enforcement authorities of "alert" information on missing persons, individuals wanted for extradition or other judicial purposes, stolen vehicles and ID documentation.
| The preferred option is to rejoin this measure and the European Arrest Warrant (EAW). Once SIS II and the National Crime Agency's SIRENE Bureau[40] are operational, the UK will have access in 'real time' to all EAWs issued by other Member States and information relating to all other law enforcement alerts. This would maximise the UK's ability to identify and arrest people who pose a threat to public safety and security and make sure that they are brought to justice (p.72).
|
Decision relating to the second generation Schengen Information System (SIS II)
Commission Decision 2007/171/EC
| 8671
p.25
8897
p.45
HC 683
paras 453, 454 and 457
| A new addition to the list of 35.
The Decision sets out detailed technical requirements for SIS II.
| The preferred option is to rejoin this measure, the second generation Schengen Information System (SIS II) and the European Arrest Warrant (EAW). Once SIS II and the National Crime Agency's SIRENE Bureau[41] are operational, the UK will have access in 'real time' to all EAWs issued by other Member States and information relating to all other law enforcement alerts. This would maximise the UK's ability to identify and arrest people who pose a threat to public safety and security and make sure that they are brought to justice (p.72).
|
Europol
Council Decision 2009/371/JHA
| 8671
p.43
8897
p.145
HC 683
paras 370-406
| Establishes the European Police Office (Europol) to provide assistance to Member States in the fight against organised crime, terrorism, and other serious crimes.
| The Government recommends rejoining the Europol Council Decision and the associated instruments necessary to the practical operability of the measure (see below). Continuing to be part of these instruments would enable the UK to maintain access to important Europol systems such as the Europol Information System (EIS) and SIENA (the Secure Information Exchange Network Application) and Europol's analytical resources, thereby helping us to effectively tackle serious organised crime and terrorism, which is a priority for the Government (p.161).
|
Europol instruments
Council Decisions 2009/934/JHA,
2009/936/JHA,
2009/968/JHA
| 8671
p.43
8897
p.145
HC 683
paras 461-466
| New additions to the list of 35.
These measures cover the exchange of personal data and classified information, implementing rules for Europol analysis work files, and rules on the confidentiality of Europol information.
| The Government recommends rejoining the Europol Council Decision and these associated instruments which it considers are necessary for the practical operability of Europol (see above). (p.161).
|
Eurojust
Council Decisions 2002/187/JHA, 2009/426/JHA, 2003/659/JHA
| 8671
p.58
8897
p.84
HC 683
paras 407-425
| Eurojust is the EU's judicial cooperation agency, designed to improve coordination and cooperation between Member States in cross-border criminal investigations and prosecutions. It advises on the requirements of different national legal systems, supports mutual legal assistance, organises coordination meetings for national authorities, mediates in conflicts of jurisdiction, supports multi-jurisdictional activities, and funds Joint Investigation Teams (JITs).
The Council Decisions establish Eurojust and bring into effect a number of changes (for example, the introduction of a new 24-hour on-call coordination system).
| The Government recommends rejoining both Eurojust and the European Judicial Network (EJN). The Eurojust measures have the additional benefit that they act as a source of funding for the EJN. Eurojust provides the facilities, language skills, legal expertise and goodwill required for effective cross-border cooperation. The benefit it brings through better international cooperation and assistance in securing cross-border investigations, operations and prosecution is judged to be far greater than the running costs (p.96).
|
Joint Investigation Teams (JITs)
Framework Decision 2002/465/JHA
| 8671
p.61
8897
p.75
HC 683
paras 426-437
| Provides a framework for national authorities to set up joint investigation teams (JITs) to carry out criminal investigations involving more than one Member State.
| The Government recommends rejoining the Framework Decision. There are no costs to participating in the measure but there are judged to be benefits in terms of the speed and ease of setting up Joint Investigation Teams (JITs). In turn, JITs help the UK tackle domestic organised crime and disrupt cross-border crime. The Framework Decision is preferable to establishing a JIT under other measures and far preferable to mutual legal assistance, as it is less time-consuming and requires less bureaucracy. Participation in this measure would ensure the UK is able to establish JITs with all Member States (p.81).
|
| Naples II Convention on customs cooperation
Council Act of 18 December 1997
| 8671
p.144
8897
p.234
HC 683
paras 438-447
| Provides for customs cooperation and mutual assistance between customs authorities. Allows for the sharing of information for the purposes of detecting, investigating and prosecuting customs crimes, and for joint customs operations.
| The Government recommends rejoining this measure to continue cooperation between Member States and customs administrations. UK customs authorities would not be able to exchange information, as well as seek and give assistance to live smuggling operations, if the UK were not to opt back into the measure (p.241).
|
37 Twenty-first Report of Session 2013-14. Back
38
SIRENE is an acronym for Supplementary Information Request at
the National Entry. Each Member State has a SIRENE bureau - the
UK's will be in the National Crime Agency. It supports the police
and other law enforcement bodies in submitting and acting on "alerts"
entered in SIS II. Back
39
GENVAL is the acronym for the Working Party on General Matters
including Evaluations. Back
40
SIRENE is an acronym for Supplementary Information Request at
the National Entry. Each Member State has a SIRENE bureau - the
UK's will be in the National Crime Agency. It supports the police
and other law enforcement bodies in submitting and acting on "alerts"
entered in SIS II. Back
41
SIRENE is an acronym for Supplementary Information Request at
the National Entry. Each Member State has a SIRENE bureau - the
UK's will be in the National Crime Agency. It supports the police
and other law enforcement bodies in submitting and acting on "alerts"
entered in SIS II. Back
|
