Select Committee on European Union Twenty-Ninth Report


CHAPTER 9: OTHER ISSUES

Privileges and Immunities

240.  Currently, since Europol is not yet a Community body and its staff are not staff of the Community, their privileges and immunities are dealt with in a Protocol to the Convention.[89] From 1 January 2010 the Protocol on the Privileges and Immunities of the European Communities will apply directly to Europol, its Director, Deputy Directors and staff.

241.  When the draft Decision was agreed on 18 April there was still outstanding one issue on which agreement had not been reached. In the Member States, police officers and others taking part in investigations have no general privileges or immunities under domestic law. It was thought by many Member States, including the United Kingdom, that Europol staff taking part in joint investigation teams should be in the same position, and should not have any immunity from prosecution for any criminal acts they might commit in the course of such investigations. The matter was resolved by the agreement of a Regulation derogating from Article 12(a) of the Protocol on Privileges and Immunities in the case of Europol staff participating in JITs. This Regulation will enter into force at the same time as the Europol Decision. The result will be that Europol staff taking part in joint investigation teams will, like national officers, have no immunity from prosecution. We believe that this is a satisfactory outcome, and so informed the Minister in July.[90]

Linguistic and legal difficulties

242.  We have explained in paragraphs 100 to 101 the problems of finding a common understanding of the term "analysis work files". This is only one symptom of a linguistic problem which afflicts all international organisations operating in more than one language. Although English is the lingua franca of Europol, there is still ample scope for misunderstanding. "Intelligence" seems to cause particular problems. Both Chief Constable Jones (Q 377) and Mr Wainwright told us of the confusion between "intelligence" and "information", the latter explaining that they were sometimes used interchangeably: "In some European languages there is not a term at all for 'intelligence', I think."(Q 76)[91]

243.  In our discussion of intelligence-led policing[92] we explained that this expression was interpreted in different ways. Mr Ratzel said: "This is one of the words which is understood in very different ways by different persons. Some investigators feel tortured by intelligence-led investigations as they misunderstand the concept …" "Operational effectiveness" was another expression which caused problems, the confusion here being between effectiveness and efficiency. (QQ 172, 180)

244.  Ultimately of course the purpose of both Europol and Eurojust, if crimes are not prevented, is to bring the criminals to court for trial, conviction and sentence. Here additional confusion is caused by the differences between the legal systems involved, and in particular by the differences between the prosecuting authorities and the procedures involved. In England and Wales the system is adversarial: the evidence is handed by the police to the Crown Prosecution Service, who decide whether a prosecution is justified and, if they conclude that it is, undertake it. France and most (but by no means all) countries governed by the Napoleonic Code use the inquisitorial system.

245.  This causes great problems to Europol, and perhaps even more to Eurojust, which has to deal not just with national members seconded by each of the 27 Member States, but with 30 different legal systems. The members can be prosecutors, judges or police officers, depending on their legal system. Mr Lopes da Mota explained: "Sometimes we use the same words but with different meanings. Take, for instance, the word 'prosecutor'. What is a prosecutor? We cannot define exactly because it is a different concept for example for the Portuguese or the Spanish or the French systems."(Q 216) And Assistant Chief Constable Gargan told us that he had personal experience of working with the French, and when a British investigator made a request their language was not understood by the French examining magistrate, not because of any linguistic difficulty, but because of very different operating systems in the two countries. (Q 375)

246.  Mr Lopes da Mota gave us an example of problems that can be caused by even minor differences in national laws. (Q 217)

BOX 14
Differences in national laws

A crucial document was needed to be used as evidence in a trial in Portugal. The document was in another country, so a letter rogatory was sent. The document was obtained in the context of a home search that took place during the night in accordance with the legislation of the requested state, and sent to Portugal. However Portuguese law provides that in that type of crime it is not permissible to make such searches between midnight and six in the morning, so the document could not be used at the trial and the defendant could not be convicted.


247.  Professor Bigo pointed out that "people jump from

their preliminary logic, the one they have in mind in their national country as if the others have the same, and it is especially the case when we discuss [the differences] between accusatory and inquisitorial procedures." He thought the key element was legal certainty. (Q 123) Professor Lodge agreed. She explained that in the case of automated information exchange relying on a tight definition of a particular term, a lack of precision in understanding a term might mean that an item would not be properly indexed, so that an investigating officer trying to find out about the existence of a file might not be able to do so. (Q 114) We would add that, even if the item has been properly indexed, an investigating officer might not be able to find it if he was searching for the wrong term.

248.  Explaining the problem is easier than finding a solution. In the particular case of AWFs there is something to be said for Assistant Chief Constable Gargan's suggestion that a review should be commissioned to clarify the language used. (Q 376)

249.  If analysis work files are to live up to expectations there must be a common understanding of the language used. We believe that a review should be commissioned to bring the terminology up to date. Once this is done, a small group should be appointed to make sure that the terminology remains clear and consistent.

250.  One of the activities listed in Europol's 2009 Work Programme is a multilingual European law enforcement dictionary, intended to be a "facilitation of search tool for Europol officials on law enforcement words and expressions, with additional comments on the translation." This is an initiative we applaud.

Quality of officers seconded to Europol

251.  The quality of national officers posted on secondment to Europol is variable. As Professor den Boer told us, "I do think that it depends on the priority within the national law enforcement organisation that is attached to European police cooperation whether or not the best people are sent to Europol. In some countries this may lead to, 'Well, this is your last job in your career', and in other countries it may amount to, 'This is the best job you can get and this is your best way to the top back in the national law enforcement organisation', so I think you have a mixed representation of quality within the Europol body."(Q 157)

252.  In the particular case of the United Kingdom, Mr Storr thought the difficulty was creating the conditions in which a period of service in Europol was of benefit to the career of the best sorts of officers. "At the moment, certainly the ACPO international representative, Paul Kernaghan, would claim that more needs to be done, and I think that is probably true."(Q 34)

253.  Mr McNulty told us: "[Going to The Hague] is not seen as a downward move, but there are inordinate difficulties that go to human resources, pension arrangements and a whole range of other issues that are a complete nightmare, but I am doing my level best to correct … [it should be] an absolute benefit to go and get some experience in Europol, Interpol or with other international forces."(Q 519)

254.  We believe it is important that only highly qualified officers should be posted to Europol. This will not happen if police officers believe that their career prospects will be damaged if they are away from their forces, especially given the disruption a posting abroad can cause to family life. This would change if it became clear that a posting to Europol—or indeed to other international agencies—normally took place on promotion. We believe that the Director of SOCA and Chief Constables should make it the norm that a secondment to Europol takes place on promotion.

The profile of Europol among United Kingdom police forces

255.  We explained in Chapter 3 that Europol communicates with each Member State only through a single national unit, and that SOCA is the national unit for the United Kingdom. It is also the national unit for other international organisations; in the words of Chief Constable Ian Johnston of the British Transport Police, "SOCA is the gateway for ACPO into Europe, and all ACPO forces connect to SOCA in terms of all of their international work at a variety of different levels through programmes of activity, through our international liaison officers [ILOs] who are attached to each force."[93] (Q 363)

THE LINK WITH SOCA

256.  Communication between SOCA and Europol is very effective, but we wondered whether the same could be said of communication between SOCA and police forces in the United Kingdom which feed intelligence and information to it and hope to receive feedback from it. We agree with Mr Storr that the burden is on SOCA to make this a two-way relationship which works. (Q 54) Yet the President of ACPO, Chief Constable Ken Jones, thought there were "real difficulties" in the relationship between SOCA and the 52 police forces; there was a feeling that communication tended to be a bit one-way at times. (QQ 406, 382)

257.  We did not take formal evidence from any of the police forces, but from informal contacts with some of them it is plain that these difficulties are only too real. The Chief Constable of Suffolk told us that his force had this year had about 80 foreign cases covering drugs, people trafficking, paedophiles, international fraud and scams, national security and terrorism issues, involving countries in Europe, Asia, Africa, USA and Latin America; but when his force needed action or information in relation to any other country, whether in the EU or outside it, they always used Interpol. He found Interpol useful and his force had, through Interpol, built up contacts with various police authorities in many countries. In his view the way in which SOCA fed information to his force left much to be desired. Information from the Yorkshire and Gloucestershire Constabularies was to the same effect.

258.  Lancashire Constabulary gave us a note which we print with the written evidence (p 207). It shows that there has been some direct contact between Lancashire's ILO and Europol officials in connection with human trafficking enquiries but that, as we would expect, most contact is through SOCA. But the main conclusion is that "the activities of Europol have little effect on the policing of Lancashire".

259.  Chief Constable Jones also thought that Europol had poor visibility amongst law enforcement agencies; in his view Eurojust had a much higher profile, and made more effort to communicate with criminal justice professionals across the EU. (QQ 378, 402) It also appears that the dissemination of Europol documents is patchy. In answer to a question about gaps in the current information exchange mechanisms within the EU justice and law enforcement communities, Sir Ronnie Flanagan said "I just wonder how many chief constables would be familiar with the document Ken has. [Chief Constable Ken Jones was holding a copy of the Europol TE-SAT report]. We could not say with 100% certainty that 100% of chief constables would be familiar with that assessment document."(Q 397)

260.  This is a regrettable state of affairs. It is likely that the true position is not so much that Europol has little effect on local policing; it is rather that, as the Lancashire Constabulary told us, "it may be that SOCA utilise Europol on our behalf to deal with some of our Interpol enquiries and we are therefore unaware of the Europol contribution". It is essential that, when local police forces seek the help of SOCA over crimes with an international element, they should be told whether SOCA intend to seek help from Europol, Interpol or some other agency, and be kept fully informed of the outcome of their query and the source of any information from international agencies. If information from Europol reaches them re-branded as SOCA information, this will hinder their evaluation of it.

261.  Similarly, if SOCA requests information for Europol from police forces, they should be told that this is the purpose of the request.

RAISING AWARENESS

262.  Paragraph 3.2 of Europol's written evidence sets out Europol's role in training. (p 85) This includes training of senior police officers at the European Police College following the cooperation agreement with CEPOL, and involvement in national training courses. Nevertheless Mr Ratzel confirmed what is plain to us from other evidence, that there is only limited awareness of Europol and its role among the police forces of the EU. He felt that young police officers should nowadays learn about Europol from the very beginning of their training. (Q 175)

263.  While Europol does itself have a part to play in raising its profile among United Kingdom forces, we believe that the main responsibility lies elsewhere, and specifically with SOCA. Other large Member States organise visits to Europol for ILOs from local forces; we believe that United Kingdom forces should do this too, and that it should be the responsibility of SOCA to arrange such visits and to encourage senior officers to have a better understanding of Europol's work.


89   Protocol of 19 June 1997 on the privileges and immunities of Europol, the members of its organs, the deputy directors and employees of Europol (OJ C 221 of 19.7.1997, p. 2). Back

90   Letter of 9 July 2008 from the Chairman of the Select Committee to the Rt Hon Tony McNulty MP, Minister of State, p 207. Back

91   This appears from the Conclusions of the JHA Council in October 2005, where "intelligence-led policing" becomes in French "activités de police fondées sur le renseignement", and in German "erkenntnisgestützten Strafverfolgung". Back

92   Paragraphs 66-76. Back

93   These are not to be confused with the liaison officers seconded to Europol. Back


 
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