The Human Rights Implications of UK Extradition Policy - Human Rights Joint Committee Contents

6  European Investigation Order

203. Our inquiry also considered the human rights implications of the European Investigation Order. The proposed European Investigation Order (EIO) is currently under negotiation in the EU. It is intended to simplify and replace mutual legal assistance agreements by which states can obtain evidence from other Member States. The Home Secretary announced the Government's decision to opt-in to this measure on 27 July 2010. The right to a fair trial (Article 6) and the right to privacy and family life (Article 8) could potentially be engaged by the EIO.

204. The EIO Directive would enable a judicial authority or public prosecutor in one Member State (the issuing authority) to issue a European Investigation Order seeking assistance from the competent authority of another (the executing authority). The executing authority would be bound to comply with the request in the same way as it deals with national investigations (subject to limited grounds for refusal), although flexibility is provided where equivalent measures would produce the desired result.

205. Existing legislation on the European Evidence Warrant would be repealed, and the EIO would replace the corresponding provisions of the other existing mutual assistance measures. Baroness Neville-Jones explained that negotiations on the EIO were proceeding slowly in the European Council and that the instrument "if finally agreed" would enter force in 2014 or 2015.[208]

206. The House of Lords European Union Sub-Committee on Law and Institutions and the European Scrutiny Committee of the House of Commons have both carried out significant scrutiny work on the EIO.[209] For this reason, we restrict our comments in this Chapter to the possible human rights implications of the EIO and the lessons that can be drawn from the experience of the European Arrest Warrant in practice.

Human rights implications of the European Investigation Order

207. Several witnesses raised human rights concerns about the proposed EIO instrument. Fair Trials International, JUSTICE and Liberty all voiced concerns to us about the lack of fundamental rights safeguards in the instrument. Fair Trials International noted that there was no express refusal built into the instrument where its use would breach fundamental rights. Further criticisms made by Fair Trials International included the absence of a dual criminality requirement, the lack of safeguards in relation to questions and the lack of adequate data protection controls.[210]

208. Liberty also raised concerns about the limited grounds for the non-execution of an EIO, including on human rights grounds. Liberty pointed out that the draft Directive only makes one reference to human rights where it states that the Directive will respect the fundamental rights and principles in the ECHR. Liberty argued that as the EIO is based on mutual recognition of legal systems "this assumption does not withstand scrutiny" as in the case of the EAW "even where human rights are an explicit consideration under the EA, British judges have been reluctant to enforce this protection in extradition cases."[211]

209. Several witnesses also argued that use of the EIO should be available to the defence as well as the prosecution. Catherine Heard of Fair Trials International told us that "it is often extremely difficult for defendants in proceedings in another country to obtain evidence from overseas [...] so making an equality-of-arms-friendly instrument is important."[212] Charlotte Powell agreed that "the European Investigation Order would not necessarily be available for defence representatives to use in order to secure evidence abroad [...] there is an equality of arms disparity which might put the requested person at a disadvantage if he cannot also."[213] Many defendants in extradition cases struggle to provide evidence to support their arguments. The EIO may go some way to rectify this problem.

210. We raised these matters with the then Minister. She told us that "every one of the issues that you have described has been raised in the negotiation." She noted that inserting more safeguards in the instrument, or including a role for the judge in the process, may make the instrument unworkable in practice. She concluded, however, that there were "areas where some guidance and safeguards would be a good idea."[214]

211. Lord Roper, Chairman of the House of Lords European Union Committee, wrote to James Brokenshire MP, Parliamentary Under Secretary for Crime Prevention, on 20 January in relation to the EIO. In his letter, Lord Roper set out the points which his Committee felt should be reflected in the final form of the Directive, including "an express ground for refusing an EIO if its execution would involve a breach of fundamental rights", the possibility of the EIO procedure being capable of use by defence lawyers and a provision for dual criminality.[215] That Committee also called for a proportionality safeguard. These concerns reflect those raised by our witnesses.

212. We fully endorse the points made about the EIO by the House of Lords EU Committee. We urge the Government to ensure the inclusion of a provision to allow the refusal of an EIO on human rights grounds and a provision for dual criminality. We also agree that the EIO should be available for the use of defence lawyers, given the difficulties that defence lawyers face in providing evidence to support their arguments.


213. Many witnesses raised concerns about proportionality. Liberty argued that without a test to ensure that the investigative measure is in proportion to the crime being investigated, "there is no barrier to a similar impact [as with the EAW] being imposed by the EIO, with the associated implications for the public purse and individual fairness."[216]

214. We discussed the issue of the EIO with the Police. Commander Gibson, representing ACPO, told us that they "broadly" supported the EIO, but with a caveat around proportionality: "we would not wish to have that same lack of control and not be able to say that we do not think that that is a proportionate use of our resources."[217]

215. In his letter to the Government in reply to the consultation on the European Investigation Order, Commander Gibson said that "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."[218] This appears to us to be a more critical assessment of the benefits of the EIO than expressed by the Secretary of State for the Home Department during her statement to the House of Commons on the decision to opt-in to the EIO when she said that,

"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.""[219]

216. Ms Fenella Tayler, Head of Judicial Cooperation Unit, Home Office, told us that the Government was "working hard to try to ensure that proportionality is included in the instrument." She explained that a key safeguard the Government were pushing for was to "ensure that an EIO cannot be sent or executed in this country for something that would not be possible under our own domestic law." She described this measure as "perhaps the most basic form of proportionality."[220]

217. In Chapter 4 we noted the difficulties caused by the lack of a proportionality principle in the EAW; the lessons from the EAW must be learned when negotiating the form of the EIO. The Government must ensure that there is an effective proportionality safeguard in the Directive, in order to ensure that the EIO operates effectively and that there are not numerous requests for information in minor cases.

208   Q 210 Back

209   See and Back

210   EXT 1 Back

211   EXT 6 Back

212   Q 27 Back

213   Q 154 Back

214   Q 225 Back

215   Letter from Lord Roper to James Brokenshire MP, dated 20 January 2011. Available at: Back

216   EXT 6 Back

217   Q131 Back

218   Available in the Library of the House of Commons Back

219   HC Deb, 27 July 2010, c 881 Back

220   Qq 219-26 Back

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© Parliamentary copyright 2011
Prepared 22 June 2011