Memorandum by Tim Wilson, Visiting Fellow,
PEALS (Policy, Ethics and Life Sciences: a joint research institute
of Newcastle and Durham universities with the Centre for Life,
Newcastle) Robin Williams, Professor of Sociology, School of Applied
Social Sciences, University of Durham
INTRODUCTION
This memorandum covers an analysis of some current
law enforcement issues relating to Europol's role in:
— the exchange of information that
could prevent serious harm and save lives
— supporting the improvement of law
enforcement capabilities within the EU (including forensic science)
— the need for additional funding and,
if this is to be made available, how to ensure it is used effectively
— translating improved threat analyses
into effective preventative action by a wide range of bodies outside
the sphere of law enforcement
It welcomes the changes in Europol's legal status,
but concentrates on the necessity for the development of future
strategies for achieving Europol's revised objectives once the
changes have taken effect.
STRATEGIC COORDINATION:
TRANSNATIONAL CRIME
IN PERSPECTIVE
The term "transnational crime" is
used in this memorandum to refer any crime undertaken within a
single state and for all intents and purposes is domestic crime,
except for the fact that the offender is a citizen of another
state. It may be unclear until the point of detection whether
the offender was a resident or even held dual nationality of the
host state (ie where the crime was committed), or was there temporarily
either for the express purpose of committing crime, or for other
reasons. Initially there may also be no indication of whether
such offending is organised or serial in nature. The nature of
such offending will vary greatly from low level violence associated
with some sporting events and stag nights, to prowling sexual
predators and highly organised criminal activity that mimics the
logistical and marketing processes of legitimate businesses.
It is important not to exaggerate the significance
of transnational crime (including internationally organised crime
and acts of terrorism) or its potential harm to UK citizens and
residents. It is likely to account for a relatively small proportion
of both recorded crime and criminal activity. Nevertheless, despite
the necessary caveats about measuring crime, it is generally accepted
that transnational crimes have increased greatly over the last
20 years (Lewis 2007).
English and Welsh penal statistics, as a very
approximate reflection of medium and more serious detected crime,
indicate a rise from 8% to 14% of foreign nationals as a proportion
of the total prison population between 1996 and 2006. During this
time the overall penal population rose by 41%. Available data
indicate that the impact within the UK varies considerably. For
instance, despite a very similar recourse to imprisonment in Scotland,
the proportion of foreign prisoners is 1.2%. Although not available
for all police forces, arrest data suggest that some of the challenges
(including scale) to law enforcement posed by transnational offending
in London, Cambridgeshire and Kent may be shared more closely
with foreign colleagues in an arc stretching from Flanders to
Catalonia (including Switzerland) rather than national colleagues
in Edinburgh and Cardiff (Wilson 2008a).
Geography, social influences in both home and
host countries, economic activity and logistics all appear to
have an impact on the scale and nature of transnational offending.
The recent expansion of the EU post-dates the development of trans-European
criminal networks. The disintegration of the "Soviet Block"
and the disparity of wealth between Northern Europe (the issues
are probably no different in Switzerland) are of much greater
significance (Glenny 2008). The EU, together with EEA/EFTA, is
likely (for reasons of physical proximity and economic interdependence)
to be the prime focus for UK international cooperation. However,
there are many other countries, particularly within the Commonwealth,
where cooperation is important for the UK, but are likely to be
far less so for other EU members.
Where EU policy may be more significant is in
promoting the Trans-European Transport Networks (TEN-T). By 2020
these will enhance European infrastructure by adding 55,900 miles
of high speed roads and 58,000 miles of railways, including 12,500
miles of high speed lines. It has been estimated that the investment
will result in 0.23% additional growth (European Commission 2005)
from the improved movement of goods and people within the EU and
neighbouring countries. The downside to this is that better communications
will inevitably also further boost the growth of transnational
crime.
BILATERAL AND
THIRD PARTY
INFORMATION EXCHANGE
The Chairman of Europol's Data Protection Supervisory
Body (also UK Deputy Information Commissioner), Mr David Smith,
has given evidence to this Committee about a failure generally
to share law enforcement intelligence (Smith 2007). We cannot
say whether the degree of cooperation involving DNA information
is typical of this failure, but it is clear that experts consider
that the present scale of international cooperation is inadequate
and this may not be appreciated by Parliament (Wilson 2008a).
The latter point was illustrated at PMQs on
20 February (Hansard 2008) when the Leader of the Opposition asked
the Prime Minister about an Anglo-Dutch initiative to seek intelligence
relating to 4,000 DNA crime stains from unsolved crimes in each
country. Neither acknowledged that this exercise with a single
country resulted in a number of matches equivalent to 70% of total
international matches with the UK NDNAD (National DNA Database)
in 2004-2005. Even when forensic cooperation does take place to
identify offenders, it may be the result of chance rather than
routine (Dickinson and Pierce 2006).
The exchange of information about DNA is an
example of where international cooperation should be relatively
easy and quick. It is based on exchanging a set of numerical genetic
data (profiles) that do not reveal information about health or
any genetically inherited characteristics. A match between any
such genetic profiles may need to be interpreted by a forensic
scientist because several different marker or profiling systems
are used in various countries that affect the probability of international
matches being reliable. If the match is sufficiently reliable,
it will also require police work to link genetic profiles obtained
from DNA to separately established and validated personal identities
(Williams and Johnson 2008). This does not detract from the fact
that such important links in an investigation can be made quickly,
thus concentrating police resources on action most likely to apprehend
the offender and prevent further harm. Even if an individual or
individuals cannot be identified, at least the nature of the activity
can be ascertained and investigative or other actions initiated.
This can be illustrated by the example of a
modest project that linked a number of serious crimes or offenders
at locations in France, Belgium, the Netherlands and Germany (Van
Renterghem 2006):
— A robbery in Amsterdam linked to
similar crime in Belgium;
— A robbery in Mill, North Brabant,
with two separate crime stains linked to a convicted offender
(robbery) and crime stains left by the second offender at a burglary
in Belgium;
— A murder in Cologne linked to arson
in Belgium;
— A robbery in Lille linked to a convicted
offender in Belgium.
The tragic consequences of not engaging in such
practical cooperation appear to be apparent from the trial of
Alain Fourniret. He is standing trial in Charleville-Mézie"res
for the murder of seven young women between 1987 and 2001 in the
Franco-Belgian border area. There may be another three victims
(BBC 2006 and 2008) and until a potential victim escaped from
him these crimes were being investigated (if not they had not
been already closed) as separate offences (Lichfield 2008).
It might be thought that the key to success
engaging in such cooperation is an expensive IT project. (At least
one of us—Wilson—has made this mistake in the past.)
What is much more critical is to have devised an effective business
process for requesting assistance from states that might hold
information relating to DNA obtained from a crime scene. The Home
Office, ACPO, Europol, the Commission, Interpol, and several members
of the ENFSI (European Network of Forensic Science Institutions)
DNA Working Party have designed such a process for exchanging
DNA (ENFSI 2007). Parallel work under the auspices of G8 Lyon-Roma
enabled the concept to be successfully pilot tested between the
UK, Canada and USA via Interpol's I 24/7 secure messaging service
in June 2007 (Interpol 2007).
This project—to devise a SRN (search request
network)—required experts to identify technical (eg different
marker systems), legal (eg different regimes for the use and retention
of DNA profiles on databases) and data protection issues that
needed to be addressed to enable cooperation to take place lawfully,
quickly and inexpensively. They demonstrated what can be achieved
without either interfering with the consensus in each member state
about the use of DNA for law enforcement purposes or the time
that legal harmonization (if at all possible) would entail. The
SRN principles are capable of implementation as an automated system,
but could be introduced initially as exchanges of information
via standardised e-mails. This would create the operational experience
and understanding needed to deliver an ICT project to time and
budget. Within the EU itself such a system may not be needed once
the Prüm arrangements are up and running, but it would be
needed for cooperation with third countries, especially those
where uploading personal profiles to the Interpol global DNA database
may not be an option. The SRN principles might also help to provide
benchmarks for ensuring accountability and transparency in the
operation of Prüm.
Deciding on and implementing the mechanisms
for information exchange is a relatively easy matter compared
with ensuring there is information to exchange. It has been pointed
out by the Secretary General of Interpol that DNA profiling is
"a discovery that has benefited mostly the wealthiest of
countries" (Noble 2007). While national investment in forensic
science will primarily assist domestic law enforcement, other
countries clearly rely on other states having the ability to upload
sufficient data from both crime scenes and suspects if worthwhile
information is to be available internationally.
While poorer countries spend less (even allowing
for purchasing power parities) in absolute terms than wealthier
ones on criminal justice, it is still likely to consume a larger
proportion of their national wealth. This means that there is
little realistic prospect of technical enhancement, such as through
the improved use of forensic science, without external financial
assistance. Indeed, even in the UK and USA such a strategy has
been possible only by meeting much of the cost from outside normal
investigative and policing budgets.
Estimates (unpublished) produced for the Home
Office in 2005 for discussion at an EU presidency seminar discussed
options for the cost of the new EU member states achieving the
same DNA profile coverage (as percentage of population) at that
date in Austria (0.6%) and the UK (4.8%). They ranged from €14
to €427 millions spread over a period of up to 10 years.
These are significant sums, but delegates noted that the estimated
cost of such forensic expenditure was equivalent to between 0.25
and 1% of the money allocated by the Commission to TEN-T over
a five year period. It was agreed that the gains from better communications
would be balanced by extra costs for law enforcement as a result
of the technological externality of criminals exploiting their
improved mobility (Home Office 2006). An alternative, and more
contemporary comparison, is with the targets for annual expenditure
in the UK alone on counter terrorism (£2.5 billion now and
rising to £3.5 billion by 2011) (Cabinet Office 2008) and
the estimated security costs of the 2012 Olympics (€0.78
billion) (The Independent 2008). The kind of sums involved, therefore,
are relatively modest both in relation to the potential benefits,
other related programmes and the scale of existing pooled funding
arrangements within the EU.
Funding is an essential pre condition for making
the benefits of forensic science available throughout the EU,
but it is not the only issue. Controls over the use of DNA—sampling/recovery,
speculative searching and profile retention will reflect normative
values and political debates that have shaped national or, in
a federal system, state criminal law. (There is for, example a
small, but significant political difference on the last of these
regulators between Scotland and the rest of the UK.). It is likely
that the use of DNA for criminal justice purposes will be more
restricted where either there is less legislative confidence in
the political impartiality or competence of the police, or there
is significant division of investigative responsibility between
judicial officials and the police (Wilson 2008b).
Effective use of the money is another matter.
DNA is now processed in the UK on an industrial scale in contrast
to traditional forensic casework, with which it now happily coexists
in providers such as the FSS and LGC Forensics. This latter quite
different forensic scientific work appears to dominate the thinking
of traditional public sector forensic providers. $1 billion of
federal funding during 2005-09 is being provided in the USA to
reduce DNA analysis backlogs (Zedlewski and Murphy 2006). As recently
as 2008, however, the National Institute of Justice referred to
a 500,000 backlog in 2002 in the publicly funded laboratories.
The USA is still falling short of the improvements in turnaround
times and volume growth achieved in the genuinely contestable
UK market. Indeed, some laboratories are reported to have resorted
to limiting the inflow of samples for processing, even returning
them to the police on reaching full capacity (NIJ 2008). The USA
is not unique. Public sector provision "is almost universally
characterised by backlogs" (Fraser 2006). Without a similar
approach to the UK contestable forensic science market and the
police recognising their role needs to include acting as an intelligent
customer, pooled funding within the EU would either be unlikely
to be spent or may result in poor value for money.
COMBATING ORGANISED
CRIME
Turning briefly to this specific form of criminal
activity, Europol potentially has a major role in alerting a wider
range of public and private bodies about threats from a shadow
economy that some commentators estimate may account for between
15 and 20% of global GDP (Glenny 2008).
An example of this arises from the significance
of Europol's analysis that "real estate is also reported
as the preferred means for investing laundered money" and
that organised crime groups integrated within the EU "besides
owning an increasing portfolio of immovable property, are also
involved in construction and property development". It has
been known for a considerable time that much of the profits of
international crime and mafia type activity in less stable regions
has resulted in the transfer of cash into Western banks and real
estate. Such integration will result in organised crime groups
seeking to "influence relatively-low level administrative
|.contacts, as well as initiating corruption within the business
community" (Europol 2007).
Within the UK developers frequently seek to
negotiate derogations from locally adopted and planning national
policies, such as the provision of a minimum number of units of
affordable housing and requirements to generate a proportion of
energy on site in a sustainable manner. Such derogations will
have a high value. Hitherto, the major concern with such negotiations
is that the results are demonstrably fair and transparent to the
local community and other developers, or that the resulting economic
benefit is not unlawful as a state aid.
The Europol report is insufficiently specific
about the immediacy of any risks to the UK and it is clear that
the threat of corruption and intimidation is directed primarily
at law enforcement. Given the scale and value of likely future
property development, particularly in the South East, this is
potentially a development that could result in harm to planning
authority members, officials, members of the local business community,
property developers and the planning inspectorate. Hence, now
is the time to ensure that effective countermeasures are put in
place, particularly when these will also serve other purposes.
In most cases the best defence may be to simply ensure transparency
and accountability in such negotiations.
It is not at all clear that there is any mechanism
for providing country or regional specific briefing to national
police forces, together with government departments and the local
authority associations outside the law enforcement sphere. Such
analyses will be of little value if they do not result in actions,
sometimes with pan-European, or at least regional, co-ordination,
to reduce the risk of future corruption and intimidation.
GOVERNANCE AND
METHODOLOGIES: EUROPOL'S
CURRENT ROLE
AND FUTURE
DEVELOPMENTS, INCLUDING
THE NEW
LEGAL FRAMEWORK
The changes in Europol's legal status are to
be commended, particularly a greater accountability to the European
Parliament, the removal of the operationally artificial restriction
on the kind of serious crimes with which Europol could become
engaged, the ability to support capability development (including
forensic science). Enhanced data protection (through a proper
Third Pillar framework) is still needed and urgently with the
forthcoming application of Prüm for information sharing.
The new legal framework is clearly only a starting
point for change and there is a pressing need for the fullest
Parliamentary, academic and public engagement with Europol about
the development of strategic priorities and proposals to support
improvements in law enforcement capability within the EU, particularly
in terms of:
— Rapidly and efficiently improving
the exchange of information that could prevent harm and save lives;
— Adequate resources (including from
First Pillar funding) to genuinely improve law enforcement capabilities
(including forensic science) and open debate about the options
to do this in a way that additional funding is used effectively;
— Translating improved threat analysis
into effective preventative action by bodies outside the law enforcement
sphere.
REFERENCES
BBC (2006 and 2008), Widening the EU's criminal
justice net, Serial killer main murder suspect and
French "serial killer" on trial news reports
published on 5.10.06, 3.11.08 and 27.3.08 at www.bbc.co.uk
Cabinet Office (2008) The National Security
Strategy of the United Kingdom (London: The Stationery Office).
Dickinson, J. and Pierce A. (2006) "Why
the international exchange of DNA information is important",
in Maximising the Opportunities for Sharing DNA Information
across Europe (London: Home Office).
ENSFI (2007) ENFSI, Search Request Network Study:
Final Report, 2007 www.enfsi.org/ewg/dnawg/documents/Annex/20F/20AGIS/Final/20Report,
last accessed on 15 April 2007.
Europol (2007) OCTA: EU Organised Crime Threat
Assessment 2007 (The Hague: Europol), pages 11-16.
Fraser, J. (2006) "The application of forensic
science to criminal investigation" in (eds.) Newburn, T.,
Williamson, T. and Wright, A. Handbook of Criminal Investigation
(Cullompton: Willan).
Glenny, M. (2008) McMafia (London: The Bodley
Head).
Hansard (2008) House of Commons Hansard Debates,
20.2.08, cols. 340-341.
Home Office (2006) Maximising the Opportunities
for Sharing DNA Information across Europe (London: Home Office),
pages 40-42.
The Independent (2008) "Mobile fingerprint
checks", 19.3.08.
Interpol (2007) Press Notice: Interpol network
links forensic laboratories in G8 countries, 06.7.07 (Lyon,
Interpol).
Lewis, C. (2007) "International structures
and transnational crime" in (eds.) Newburn, T., Williamson,
T. and Wright, A. Handbook of Criminal Investigation (Cullompton:
Willan).
Lichfield, J. " "Ogre of Ardennes"
stands trial for girls' murders" The Independent,
26.3.08.
NIJ (2008) "Increasing Efficiency in Crime
Laboratories" In Short: Towards Criminal Justice Solutions,
January 08 (Washington DC: National Institute of Justice).
Noble, R.K. (2007) Opening Remarks at 5th
International DNA users' conference for investigative officers,
14.11.07 (Lyon, Interpol) published at www.interpol.int.
Van Renterghem, P. (2006) from a presentation
entitled "Belgium and International Exchanges of DNA Data",
at a conference held by the Institute National de Criminalistique
et de Criminologie Justice, 9 October 2006 (unpublished), but
described in Wilson (2008a).
Smith, D. (2007) Uncorrected Transcript of Oral
Evidence to House of Commons Home Affairs Committee, 23.1.07.
Williams, R. and Johnson, P. (2008) Genetic
Policing (Cullompton: Willlan).
Wilson, T. (2008a) "The Internationalisation
of Policing" in Fraser, J. and Williams, R. (eds), Handbook
of Forensic Science (Cullompton: Willan), scheduled for publication
in October 2008.
Wilson, T. (2008b) "Applying the Science"
in Brown, S. (Ed) Combating International Crime: The Longer
Arm of the Law (Abingdon: Routledge-Cavendish), scheduled
for publication in June 2008.
Zedlewski, E. and Murphy, M.B. (2006) "DNA
Analysis for "Minor" Crimes: A Major Benefit for Law
Enforcement", NIJ Journal No. 253, January 2006 (Washington
DC: US Department of Justice).
30 April 2008
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