Fourth Report
Instrument drawn to the special attention of the House
Criminal Justice (European Investigation Order) Regulations 2017 (SI 2017/730)
Date laid: 10 July 2017
Parliamentary procedure: negative
This instrument transposes Directive 2014/41/EU regarding the European Investigation Order which standardises the way one Member State can ask another for help in pursuing cross-border criminality. Investigators in another Member State can request assistance with gathering evidence, investigating banking information, executing search warrants or taking evidence from witnesses. Regulations standardise the format and the timetable for executing the request. The Explanatory Memorandum also notes that regulation 59 designates a request made under the Directive as an EU Mutual Assistance Instrument for the purposes of section 10 of the Investigatory Powers Act 2016 (not yet in force), enabling the UK to give effect to European investigation orders relating to the interception of telecommunications. The Committee raised questions about how “temporary transfers” of prisoners to another Member State to help with their investigations are to be handled and what assurances there are that the prisoner will be returned. Regrettably, the Home Office has failed to respond in the seven weeks since we made that request. We shall pursue those enquiries directly with the Minister.
These Regulations are drawn to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
1.These Regulations are laid by the Home Office under section 2(2) of the European Communities Act 1972 and are accompanied by an Explanatory Memorandum (EM). They transpose the requirements of Directive 2014/41/EU regarding the European Investigation Order in criminal matters (“The Directive”).1 A standardised form for making these requests is included as Annex A to the Directive.
Content
2.The Directive seeks to standardise the way one Member State can ask another for help in pursuing cross-border criminality. Prosecutors and investigators have complained of the varying, and sometimes significant amount of time, it was taking to execute these requests under the previous system of Mutual Legal Assistance (MLA). Regulation 8 introduces the standardised form for the request and regulation 30 sets time limits, for example the request must be recognised within 30 days and executed within a further 90 days. Regulation 28 sets out the grounds on which the request can be refused, for example if the conduct being investigated does not constitute an offence under the law of the relevant part of the UK.
3.The EM also explains that regulation 59 designates the Directive as an EU Mutual Assistance Instrument for the purposes of section 10 of the Investigatory Powers Act 2016 (not yet in force), enabling the UK to give effect to European Investigation Orders relating to the interception of telecommunications. This is the first time this provision has been used.
Implementation
4.The transposition date for the Directive was 22 May 2017 but the Home Office thought it inappropriate to make the Regulations in the period immediately before the General Election on 8 June. We note with approval that, unlike several instruments we have recently drawn to the House’s attention, the Home Office’s approach to transposition still allows the standard period for Parliamentary scrutiny.
5.The EM states that around 80% of MLA requests received by the UK are from EU Member States. Applying a streamlined approach to recognising and executing requests is therefore mutually beneficial to the UK and other Member States who are subject to the Directive. It is expected that the legislation will result in a gradual rise in the number of such requests as standardisation makes it easier for the authorities to anticipate the outcome. Given that the changes these Regulations make are all recognised as a significant improvement on the MLA system, the House may wish to know what arrangements the Home Office proposes to make for such exchanges once we leave the European Union.
Clarifications
6.The Committee had a number of concerns in relation to the provisions which allow a prisoner to be “temporarily” transferred to the custody of another Member State to assist with their investigations although a primary requirement is that the prisoner must consent to the proposed transfer. The Committee noted that, in contrast to the provisions relating to an item of evidence, there was no provision on the form to set a time period for the return of a prisoner and that there appeared to be no provision preventing the receiving country transferring the prisoner to another Member State. We wrote to the Minister on 19 July seeking clarification of how certain aspects of this process are intended to operate (this letter is published in Appendix 1). Regrettably, the Home Office has failed to respond in the seven weeks since we made the request. We shall pursue those enquires directly with the Minister.
1 Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters (OJ L 130, 1.5.2014, p. 1).