Select Committee on European Union Minutes of Evidence


Memorandum by Association of Chief Police Officers—Terrorism and Allied Matters (ACPO-TAM)

SUMMARY OF KEY POINTS

  1.  There are other organisations that are engaged in CT co-operation in Europe, besides those that are part of the EU structure. One such, for law enforcement/police is the Police Working Group on Terrorism (PWGT). Some countries, geographically in Europe are not in the EU.

  2.  The National Terrorism & Extremism Liaison Section (NTELS) based at New Scotland Yard, runs a network of UK Counter Terrorism & Extremism Liaison Officers (CTELOs) in Europe.

  3.  The exchange of data within the EU would depend on the type of material being passed and its intended use. Sensitive intelligence would only be passed bi-laterally for intelligence purposes.

  4.  The different legal systems in Europe means that it is easier for some countries to use and pass materially for evidential purposes, for example intercept product, than others.

  5.  Non-sensitive data could be shared or communally accessed throughout the EU, provided that any applicable data protection requirements were met.

  6.  There would need to be agreed standards and procedures for data transfer and/or interoperability of databases and compatibility of IT systems. Bi-lateral exchanges may be the best way forward as an initial step with other countries being brought in later.

  7.  The best method of combating terrorism in Europe is to have strong national CT police and security service structures in place, supported by the EU with complementary matters, such as analytical assistance, training/best practice, databases etc.

  8.  The G5 does not prejudice EU-wide initiatives, it suggests them and can act as a driver for them by getting support and agreement from the five countries with the largest CT capability in Europe.

  9.  The EU institutional arrangements, Europol, European Police Chiefs' Task Force (EPCTF) and the EU CT Co-ordinator should act in support of EU member states by supporting their CT activity but not by seeking to replicate it or by intervening operationally in it.

JUSTIFICATION

  1.  The fight against terrorism obviously requires close national and international co-operation in order to prevent the no warning mass casualty type attacks, sometimes involving suicide by the perpetrators, which are the cause of such concern at the present time. The most recent example is the bomb attacks on the commuter trains in Madrid on 11 March this year, which killed almost 200 people. It is clear that every effort must be made to prevent terrorist attacks, wherever they may occur and avoid such casualties. A continuous search for improvements in international law enforcement co-operation, including the exchange of data is therefore justified and would, indeed, be expected by the citizens of Europe. However, terrorism in Europe is not, sadly, a new phenomenon and there has been considerable practical co-operation on counter-terrorism issues for many years, certainly before the formation of such organisations as Europol or the European Police Chiefs Task Force (EPCTF).

  2.  Since 1975 practical operational co-operation and information exchange for UK police on counter-terrorism matters in Europe has been assured by the National Terrorism & Extremism Liaison Section (NTELS) of the Metropolitan Police Special Branch, based at New Scotland Yard. NTELS, as the name suggests is a national unit and belongs to the Police Working Group on Terrorism (PWGT). This organisation, set up in 1979 in the wake of the assassination of the British Ambassador to the Hague, Holland, includes all EU member states as well as Switzerland and Norway and members have a secure communications network for the passage of information. The leaders of all the PWGT counter-terrorist units meet twice a year in the member countries on a rotating basis. It last met in Warsaw, Poland on 27 and 28 May 2004. There was an exchange of operational information, a presentation by the Spanish delegation on the 11 March attacks in Madrid and dates of future meetings were arranged (UK to host in Autumn 2006). In addition, three new EU countries were admitted to permanent observer status, pending full membership of the PWGT.

  3.  NTELS also runs a network of Counter-Terrorism & Extremism Liaison Officers (CTELOs) in Europe and beyond. These officers are dedicated to co-operation and the exchange of data with our European police colleagues. At present the CTELOs in Europe are based in France, Germany, Benelux, Italy, Austria (covering central Europe & EU accession countries) and Greece. Agreement has been reached and a CTELO will shortly be appointed for Spain and one may be agreed for Turkey.

  4.  The point to be made is that there is already very close co-operation and exchange of data between law enforcement authorities both within EU structures and outside it. The need to co-operate with countries that are geographically in Europe, but not part of the EU, such as Switzerland and Norway, should also be stressed. The PWGT arose to service a clear need to pass reliable relevant information rapidly on CT issues between European countries, initially in response to the PIRA European campaigns and such international terrorists as Carlos The Jackal or the Baader Meinhof gang in the mid-1970s. This can be done on a bi-lateral or multi-lateral basis. It has since been augmented by other channels such as Europol and the EPCTF. In addition, following CT incidents such as terrorist attacks or police arrest operations, immediate post event ("hot") de-briefs are held with European CT police liaison colleagues by the country affected. This occurred recently following the Madrid attacks on 11 March 2004 and after the arrests in the UK in early August. These de-briefs enable the emerging intelligence picture to be rapidly disseminated and allows European countries to respond appropriately by re-visiting protective security measures, border controls and so on. It also allows new attack techniques or methods of operation, employed by terrorists, to be made known rapidly throughout Europe. It is difficult to see how this could be improved upon within existing national structures and the constraints imposed by the nature of CT intelligence data.

DATA EXCHANGE

  5.  The establishment of equivalent access to data by national law enforcement authorities in the EU and the extent to which it would challenge member states' legal and constitutional principles would depend on the type of data being accessed and the use to which it would be put. There is a great difference between data which is to be used as part of the judicial process (eg in evidence) and that which is to be used for intelligence purposes (eg to determine which subjects might be placed under surveillance or made subject of an investigation).

  6.  In the UK some material, such as telephone intercept data, cannot be used in evidence and could not be passed to another EU member state for evidential purposes. However, it could be passed for intelligence purposes, as could material emanating from covert human intelligence sources, although in judicial proceedings public interest immunity would usually be sought. Conversely, in other EU member states, where telephone interception is authorised by an investigating magistrate or judge, intercept data can be passed to the UK and can be used by the member state (and the UK) in evidence in judicial proceedings. In addition, UK data, such as records of criminal convictions, material obtained from a police search under a judicially authorised warrant or from a statement made under the Criminal Justice Act provisions can be passed to another EU member state for use in evidence. Consideration must also be given to the "third party rule", whereby organisations can only pass their own (owned) data. Data which belongs to a third party can only be accessed and disseminated with the consent of the third party.

  7.  There are also different legal conceptions within the EU about the type of data that might be regarded as "evidence" or that which might be regarded as "intelligence" and the weight that it should be accorded. In some judicial systems, the appearance of a person's name and address in the address book of a convicted terrorist might, alone, be sufficient to institute legal measures such as arrest and search. This would not usually be the case in the UK. There are also issues about the reliability of the data concerned, its age, timeliness and assessment.

  8.  Possible areas for the sharing of, or equivalent access to, databases in the EU law enforcement community could include those databases which do not contain potentially sensitive intelligence. These could include records of criminal convictions, fingerprint records databases or records of identity documents, that have been reported as lost or stolen. These databases could be centralised for use by all EU member states assuming that suitable IT equipment can be obtained and there may be a case for this to assist in rapid and accurate identifications of persons coming to notice. However, it is unlikely that they would be suitable for all law enforcement purposes as they would not contain the more sensitive information. The interoperability of databases would again depend on suitable compatible IT equipment throughout the EU as would the transferring of data between databases. It would also depend on agreed formats and standards for the data being transferred or held. There are differences in European law enforcement standards in some cases. For example in the number of points of comparison for making fingerprint identifications between the UK and Germany. These would also have to be addressed.

DATA PROTECTION

  9.  The routine passing of data from the UK to any future EU owned and administered database(s) would entail some form of guarantee that it complied with the UK's current data protection legislation, in terms of its veracity, relevance, age, weeding procedures and so on, or some agreed EU alternative. The UK already contributes a great deal to the Europol's CT analytical databases, but the information is still UK owned and it cannot be further disseminated to other EU member states without the consent of the originator in the UK. (In other words the third-party rule still applies and other states do not have free access, only Europol's CT analysts do.)

THE ROLE OF THE EU

  10.  It is the generally held view of the police and intelligence services in the UK (and, I believe, most other EU countries) that the best method of combating terrorism is to have strong national CT law enforcement and intelligence organisations in each of the EU member states that can communicate effectively with all of their other European partners. This national security responsibility cannot be abrogated to Europe or other European institutions. Some EU member states will have different intelligence priorities and requirements in the CT sphere (eg Northern Ireland—UK, Corsica—France, Basques—Spain). In addition, the constraints imposed by the different legal systems results in different methods of law enforcement operating practices between member states. Member states also have widely differing CT capabilities. For these reasons it is the view that the EU and related European law enforcement organisations (Europol & EPCTF) should act in support of member states, for example assisting with analysing the intelligence data and maintaining EU crime databases. It is not thought that, in general terms, the EU has separate CT objectives from those of the member states. Nonetheless, an agreed EU intelligence policy on terrorist threats generally acknowledged to affect all member states (ie the threat emanating from Al Qaida related groups) might assist in focussing the collection of data or allocation of resources in those states where the perception of the threat is less acute than others. In this respect it is important that the EU sets a good example within the international arena in terms of CT co-operation, demonstrating best practice.

  11.  The fourth G5 Counter-Terrorist practitioners (law enforcement) meeting took place in London on 14 and 15 June 2004, together with a joint meeting with the G5 Security Services representatives. This was one of the pre-meetings for the G5 Home Secretary/Interior Ministers meeting in Sheffield on 5 and 6 July. As a result of the CT practitioners meeting, a list of agreed action points was circulated and a copy of this is attached to this document to give some indications of the issues addressed. The aim of the G5 CT practitioners meeting is to examine and develop initiatives to improve CT co-operation and data sharing and to act as a driver for these to be made EU wide in due course, if this is practicable. Once again, the differences in the law enforcement capabilities of the different member states mean that some are able to move faster than others. It is not felt that the G5 prejudices EU wide initiatives, it is intended to develop and assist them. For example in the development of forensic intelligence databases, bi-lateral exchanges are at first being explored with G5 members, who have the forensic capability. It would then be hoped, eventually, to export this EU wide (and possibly beyond) as an example/benchmark of best practice.

INSTITUTIONAL ARRANGEMENTS

  12.  In terms of changes in the institutional arrangements of the EU, as far as Europol is concerned, the G5 CT practitioners meetings (law enforcement & security service) made a number of suggestions to improve co-operation with Europol and increase the relevance of its work (This document is attached to this report classified as RESTRICTED.)[1] The most important point is that the EU institutions add value to and assist with the work being carried out by members states and/or find areas that are not covered by them to develop for themselves. They should not seek to replicate work that is already being done or introduce measures that (intentionally or not) increase the workload on member states or potentially hinder their operational ability, by, for example, seeking an independent operational capability or response to incidents in member states. The differences in capability, legislation and operating environments within member states would effectively preclude this. The same is true for the EPCTF or indeed for the EU Counter-Terrorism Co-ordinator. The EU CT Co-ordinator can ensure that all the EU CT activity, spread as it is among different committees dealing with the various aspects of law, immigration, border controls, transportation, and police liaison, is properly co-ordinated and effective. The EPCTF can ensure, in the law enforcement arena, that the resources are made available in their respective countries to staff joint investigation teams (on an EU-wide, multilateral or bilateral basis) to target or deal with identified CT issues or threats affecting two or more member states.

Andrew Welch

Detective Sergeant

14 September 2004



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