COOPERATION NOT CONTROL EU Policing by RAAB

Cooperation Not Control:

The Case for Britain Retaining Democratic Control over
EU Crime and Policing Policy

About the author

Dominic Raab is the MP for Esher and Walton. Before entering Parliament, he worked as a

business lawyer at Linklaters and spent time on secondments at Liberty (the human rights NGO) and in Brussels advising on EU and WTO law. From 2000 to 2006, he worked at the Foreign &

Commonwealth Office where he advised on UK investor protection, maritime issues, counter-

proliferation and counter-terrorism, the UK overseas territories and the international law of outer space. In 2003, he was posted to The Hague to head up a new war crimes team. From 2006, he was Chief of Staff to respective Shadow Home and Justice Secretaries, advising on crime, policing, immigration, counter-terrorism, human rights and constitutional reform. He is the author of The Assault on Liberty – What Went Wrong with Rights (Fourth Estate, 2009), and co-author

of After the Coalition (Biteback, 2011) and Britannia Unchained (Palgrave Macmillan, 2012).

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CONTENTS

Chapter Page

1. Executive summary 4

2. Background and the case for cooperation not control 8

2.1. Background to the decision 8

2.2. How to achieve a new model of cooperation 14

2.3. Category 1: Measures of practical value to the UK 16

2.4. Category 2: Measures intended to achieve legal

harmonisation across the EU 20

2.5. Category 3: Measures of little, if any, use to the UK 21

2.6. Category 4: Measures which duplicate existing UK law 22

2.7. Category 5: Measures whose impact is unknown 22

2.8. Category 6: Measures which have not been

implemented in the UK

2.9. Category 7: Measures which are redundant 24

2.10. Category 8: Measures which do not directly affect the UK 25

3. 135 EU crime and police measures: evaluation of measures 26 3.1. Category 1: Measures of practical value to the UK 26

3.2. Category 2: Measures intended to achieve legal

harmonisation across the EU 45

3.3. Category 3: Measures of little, if any, use to the UK 48

3.4. Category 4: Measures which duplicate existing UK law 52

3.5. Category 5: Measures whose impact is unknown 54

3.6. Category 6: Measures which have not been

implemented in the UK

3.7. Category 7: Measures which are redundant 63

3.8. Category 8: Measures which do not directly affect the UK 65

Appendix: JHA Parliamentary Questions by category 67

1. EXECUTIVE SUMMARY

International cooperation regarding criminal justice and policing is vitally important. It makes sense to work closely with other EU countries to fight crime. However, the UK does not need to sacrifice democratic control over policy-making via supranational legislation to achieve enhanced practical law enforcement cooperation. Britain should pursue a policy of maximising cooperation, whilst minimising the loss of democratic control.

In this report, it is recommended that the United Kingdom should exercise its block opt-out regarding EU crime and policing laws which entered into force before the Lisbon Treaty. By doing so, it will avoid becoming subject to the extended jurisdiction of the European Commission and the European Court of Justice (ECJ) over these measures, which will come into effect from 1 December 2014. It will also serve notice that the UK will not follow other EU states on the path towards harmonisation of criminal law, enforced by an EU Public Prosecutor and the European Commission and interpreted by the ECJ.

The real area of contention relates, after exercising the block opt-out, to the extent to which the UK should exercise its right to apply to opt back in to certain EU crime and policing laws, on a selective basis. Those choices are contingent on a cost-benefit analysis in each case.

What emerges from the wider analysis in this report is that, while some of the EU crime and policing measures have proved valuable, many instruments are flawed or of minimal operational relevance to the UK. In a number of cases, supranational legislation masquerades as a substitute for practical cooperation.

Most notably, there is not a single measure covered by the opt-out where the evidence suggests that the law enforcement cooperation aims desired necessitate ceding democratic control to supranational EU bodies such as the Commission or ECJ. For each measure examined in this report, the functional cooperation could be achieved through ad hoc bilateral or multilateral cooperation, cooperation pursuant to a Memorandum of Understanding (MoU) coupled as necessary with domestic implementing legislation, or – where an international legal basis is required – a treaty framework or EU instrument that is not supervised and enforced by the Commission and ECJ.

Moreover, the UK might also seek to develop a broader relationship for cooperation in this area analogous to the ‘Frontex’ model, covering cooperation on external borders. The UK participates in operations on a case-by-case basis, without being bound as a full member state.

Of the 135 measures to which the block opt-out applies, there are 60 measures which are of some practical value to the UK, with that value ranging from marginal to substantial. The question is how the UK should best proceed to retain the varying benefits these measures bring, if the government exercises the block opt-out decision. Several of these measures deal with the pan-EU law enforcement agencies. These include the legal instruments governing Eurojust, the EU’s judicial cooperation body, and Europol, the European policing agency, which promote valuable law enforcement cooperation, but are also viewed by the Commission as stepping stones towards an EU Public Prosecutor. Similarly, while EU-wide criminal record checks are beneficial, they require enhanced bilateral administrative cooperation not supranational supervision. Likewise, UK involvement in joint investigation teams in cross-border cases are useful, but such cooperation could be achieved without giving the ECJ the final word on the rights and obligations of foreign authorities operating on UK soil.

The European Arrest Warrant (EAW), which provides for fast-track extradition between EU member states, also falls into this category. The principle of EU-wide extradition for the purposes of law enforcement cooperation is sound, but the EAW net is now cast so widely that it

puts an operational strain on UK policing and increasingly sweeps up innocent British nationals without proper checks to prevent miscarriages of justice. The UK should take this opportunity to maximise its negotiating leverage, after the block opt out, to press for modest reform to ensure that the EAW is used more proportionately and better safeguards innocent people from speculative charges, wrongful arrest, and manifestly tainted evidence as a condition of opting back in. If the UK did not opt back in to this instrument immediately, arrangements under pre-existing multilateral European conventions would allow European extradition to continue, subject to stronger safeguards albeit longer delays.

There are 11 measures subject to the opt-out which are intended to achieve legislative harmonisation across the EU. The UK has implemented the majority of these standard-setting measures, and transposed them into national law, so it would not be necessary for the UK to continue to participate in them, at the EU level, at the cost of having to surrender jurisdiction to the European Commission and the ECJ. More broadly, whilst harmonising criminal law undermines national democratic accountability and risks eroding the UK common law tradition, there is little evidence of significant operational law enforcement benefits to the UK.

There are a further 11 instruments that have proved to be of minimal use to the UK authorities, and the UK could opt out of these with few practical consequences. A good example is the 1998 Council Act drawing up the Convention on Driving Disqualification, designed to ensure that driving bans can be enforced for offences committed in other member states. Only the UK and Ireland have implemented this legislation, and then only since 2010. Even if the UK opts out, it could still legislate at national level to recognise the disqualification of drivers abroad, without the need to remain subject to supranational EU law and supervision.

Another 11 instruments are of minimal value to the UK because they duplicate laws and standards that were already maintained by the UK authorities before the EU legislation was introduced. Examples include EU anti-drugs legislation dating from 2002 and 2003 to ban drugs including PMMA (linked to ecstasy overdoses) and TMA-2 (an amphetamine derivative). In both cases, the UK had already banned these drugs since 1977.

There are 16 instruments where there is a lack of adequate data to monitor their effectiveness and it is impossible to meaningfully evaluate their overall value or relevance to the UK. There are 7 instruments that have not been implemented by the UK, which include measures designed to allow the exchange of sensitive personal information – not just of convicted criminals, but also ordinary citizens – such as DNA profiles, fingerprints and vehicle registrations, and opting out would therefore present no immediate risk. There are 9 measures that are redundant. Some have been formally repealed and replaced since the passing of the Lisbon Treaty, and are therefore no longer in effect, while others have been superseded by new measures or technical developments.

Finally, there are 10 measures subject to the opt-out that do not directly affect the UK. The majority of these concern agreements approving the exchange of classified information between the institutions of the EU – not their member states – and various other countries, including the United States, Russia, Ukraine, Croatia, Bosnia Herzegovina, Switzerland , Norway, Iceland and Macedonia. Given that this legislation governs the exchange of information at the EU institutional rather than member state level, following an opt-out decision, there is no reason for the UK to opt back into this legislation.

This report does not seek to definitively determine the right course of action for each and every measure, after exercising the block opt out, but rather shed light on their value to UK law enforcement based on the empirical information available, and consider whether alternative models of cooperation could achieve the law enforcement aims desired. This does not mean

that the UK should decline to opt back in to all of the 135 measures. A range of measures merit serious consideration. However, this report illustrates that the development of JHA cooperation is being driven by considerations beyond law enforcement cooperation, which have longer term implications for UK democratic accountability and Britain’s distinctive legal model and justice system.

In some cases, the choice of approach will depend at least to some degree on the attitude and flexibility of other EU member states. As well as informing the approach to the block opt-out, the appraisal also highlights the case for Britain developing a new model of justice and home affairs (JHA) cooperation with EU member states for the future. Far from reflecting ideological Euroscepticism, this approach is designed to increase the prospects of, and scope for, operational law enforcement cooperation, by maximising the forms and models through which it can be delivered.

Myths & Facts about the UK opt-out

Myth 1: If we don’t opt in we will lose all cooperation with EU partners on crime and policing.

Fact: By opting out en bloc, we avoid sacrificing UK democratic control over 135 crime and policing measures to the European Commission and European Court of Justice. We can opt back in to those measures that serve the UK national interest, an opportunity to re-cast our relationship so it is based on practical law enforcement cooperation, without being part of the EU Commission’s drive towards a single EU criminal code enforced by a European Public Prosecutor and the European Court of Justice.

Myth 2: The UK needs to give the European Commission and European Court of Justice the last word over UK crime and policing policy to strengthen public safety.

Fact: The UK has its closest security relationship with the US, and we don’t give the FBI or the US Supreme Court supranational control over our policy-making. Britain cooperated closely with the Norwegian authorities over the Anders Breivik terrorist atrocities, and that did not involve any supranational loss of democratic power. You can favour strong operational law enforcement cooperation with EU partners without supporting the sacrifice of UK democratic accountability over policy and law-making.

Myth 3: We will lose vital areas of cooperation like data-sharing over criminal records.

Fact: We have the legal right under the Lisbon Treaty to opt back in selectively to any area of policy, where it serves the British national interest in law enforcement.

Myth 4: We will not be able to extradite to EU countries.

Fact: We can and should consider opting back into the European Arrest Warrant, but only after it is reformed so it does not sacrifice UK citizens to face incompetent justice systems (as in the Colin Dines case), corrupt police (as in the Andrew Symeou case) and appalling prison conditions (as in the Symeou and Michael Turner cases). In the meantime, we can rely on pre-existing Council of European Conventions with stronger safeguards to continue extradition cooperation.

Myth 5: We should not opt out, because the EU will not allow any re-negotiation of the European Arrest Warrant.

Fact: In reality, the opponents of opting out argue two contradictory things. They say the UK needs to be part of EU integration on crime and policing to wield influence, but at the same time that we have no influence on matters affecting our vital interests. Britain receives around a third of all European Arrest Warrants, so we are well placed to insist on

modest safeguards to protect innocent citizens. Many other EU countries are concerned about the European Arrest Warrant, including Germany, France and the Netherlands. EU partners will not want to lose such a major partner as the UK in a field where we have unique expertise, intelligence and experience. Opting out en bloc and then pressing for reform will maximise our negotiating leverage. If we opt back into the EAW immediately, what incentive would our EU partners have to consider our proposals for reform?

Myth 6: Without the European Arrest Warrant we could not have extradited Osman Hussein for the 21/7 terrorist attacks or Jeremy Forrest for the abduction of Megan Stammers.

Fact: These cases relied on strong practical cooperation as much as the technical framework under the European Arrest Warrant. Is it seriously suggested that the Italians would not have made every effort to arrest a terrorist fugitive before the European Arrest Warrant was in place? In any event, serious cases where the suspect is a British national should arguably be solved through deportation or expulsion back to the UK. The fact that we have to rely on extradition to return nationals back to their home countries highlights the flawed development of EU law, which has through EU legislation and ECJ judicial activism narrowed the scope to return fugitives and convicted criminals to their home countries. This highlights the risk of pursuing further JHA integration, and in particular sacrificing judicial interpretation to the ECJ. The Home Secretary has indicated that the qualifications to free movement (including the ability to expel fugitives or convicted criminals) is an area that needs to be reviewed as part of our wider Justice and Home Affairs relationship with the EU. Alternatively, changes to the EAW regime could distinguish between the return of nationals to their home countries, which should be more straightforward, from other requests. Finally, it is perverse to suggest Britain cannot cooperate in the EU over counter-terrorism and serious crime, without sacrificing basic principles of justice that protect innocent UK citizens. Not one of our EU partners has said this, and any suggestion to that effect would amount to blackmail – which is hardly a sound basis for confidence-building or cooperation.

Myth 7: Our EU partners will refuse to allow Britain to opt back in on a case-by- case basis.

Fact: The Lisbon Treaty negotiated by the last government created the UK opt out with the option of selectively opting back in, so we have a legal right to pursue this course and our EU partners already envisage this process. Under separate arrangements, Denmark already participates in EU Justice and Home Affairs measures on a selective basis, under parallel agreements with the EU, while third countries cooperate across a range of fields. Britain needs to develop a more flexible relationship with the EU, so this is also an important litmus test for the EU as well as for Britain.

Myth 8: The opt-out is about ideological hostility to the EU.

Fact: The arguments set out in this report in favour of opting out are based on a pragmatic cost-benefit analysis of the British national interest. They include a range of areas where Britain wants to cooperate. They also point to tangible areas of concern, like the arbitrary effect of the unreformed EAW and the risks of allowing the personal data of innocent British citizens to be shared across EU member states. The last government signed Britain up to a vast array of measures without putting the proper means in place to empirically assess or evaluate their benefits to Britain. It is many of those arguing for Britain to opt in who are taking an uncritical and ideological view that leads to a pan European criminal code enforced by a European Public Prosecutor and the European Court of Justice.

2. BACKGROUND AND THE CASE FOR COOPERATION NOT CONTROL

2.1. Background to the decision

Britain faces a fork in the road. Under the terms of the Lisbon Treaty, by 31 May 2014, the UK must choose whether to exercise a block opt-out decision in order to repatriate the EU crime and policing laws adopted before the Treaty came into effect in December 2009.1 In other words, Britain must decide whether we want more or less EU control over these crucial areas of policy.

This decision arises because of the changes due to take place in the field of EU Justice and Home Affairs in December 2014, as a result of the Lisbon Treaty. These changes are two-fold. First, the European Court of Justice will assume full jurisdiction over pre-Lisbon policing and criminal law. It will become the final authority, overriding British courts, on the interpretation of this legislation – and, by extension, whether it is being implemented properly at national level. Second, the European Commission will be able to bring infraction proceedings – i.e. sue – member states in the ECJ for infringing the terms of the pre-Lisbon legislation.2 This could happen, for example, if the Commission felt that a country was failing to operate one of its regulations adequately.

These changes will definitely take place in 25 EU member states. Only the UK and Denmark secured opt-outs. In Denmark’s case, this took the form of changes to its protocol on Justice and Home Affairs. These changes ensure Denmark can keep existing pre-Lisbon crime and policing measures “unchanged” and outside the jurisdiction of the ECJ and the powers of the Commission, irrespective of any subsequent amendments to this legislation.3 The Danish model is based on the principle that effective cooperation does not require a member state to be subject to supranational jurisdiction. The UK opt-out is different. Until 31 May 2014, the UK has the opportunity to reject the extension of the jurisdiction of the Commission and the ECJ, by opting-out of the EU’s pre-Lisbon crime and policing legislation that predates the Lisbon Treaty.

The body of pre-Lisbon crime and policing laws includes significant items of legislation, such as the European Arrest Warrant, which regulates extradition to other EU member states, and the laws governing the EU’s prosecutorial arm, Eurojust, and its policing body, Europol. It also covers a wide range of measures concerning data sharing, including criminal records and DNA. Taken altogether, the 2014 decision has been described as the “mother of all opt-outs”.4

Furthermore, given the government’s stated aim of seeking wider repatriation of powers, and a renegotiation of the UK’s relationship with the EU, including over the wider field of Justice and Home Affairs policy – which covers post-Lisbon crime and policing, immigration, and other measures – the decision is an important precursor to, and precedent for, developing a wider dialogue between Britain and the EU.

Extending the powers of the ECJ and the Commission would be likely to have a number of inherently negative implications for the UK. For example, the Commission could launch an infringement action against the UK, because it believed the UK was failing to respect the powers of foreign police officers to operate in Britain as part of a Joint Investigation Team.

1 See Article 10 of the Protocol to the EU Treaties on transitional matters (Protocol 36),

available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008M/PRO/36:EN:HTML

2 House of Commons Justice Select Committee, Justice Issues in Europe (Seventh Report, 2009-10), paragraph 19,

available at http://www.publications.parliament.uk/pa/cm200910/cmselect/cmjust/162/16204.htm#a8

3 For an in depth explanation of the operation of the Danish Protocol, see Open Europe, An unavoidable choice: more or less EU control over UK policing and criminal law, January 2012, pp. 28-29,

Click to access JHA2014choice.pdf

4 Professor Steve Peers, The mother of all opt-outs?, The UK’s possible opt-out from prior third pillar measures in June 2014,

available at http://www.statewatch.org/analyses/no-168-eu-uk-opt-out.pdf

Likewise, it would be undesirable for the ECJ to be the final judicial authority regarding whether a British citizen should be extradited under a European Arrest Warrant. There are compelling arguments for the UK Supreme Court to have the final judicial interpretation concerning safeguards protecting UK citizens from fast-track extradition.

These concerns are heightened by the recent history of both the Commission and the ECJ. The Commission has long displayed federalist ambitions. In the JHA sphere, these are manifested in ongoing moves to introduce a pan EU-criminal code.5 The Commission recently renewed its call for an enhanced role for Eurojust and the creation of a European Public Prosecutor. In his “State of the Union” speech in September 2012, Jose Manuel Barroso, the President of the European Commission, announced:

“Our commitment to upholding the rule of law is also behind our intention to establish a European Public Prosecutor’s Office, as foreseen by the Treaties.

We will come up with a proposal soon.”6

These developments occur at a time when qualified majority voting in the Council of the EU has been extended to determine the future development of the EU’s crime and policing laws. Prior to the Lisbon Treaty, Justice and Home Affairs legislation was divided between “first pillar” issues, where qualified majority voting and a UK opt-in applied, and “third pillar” issues, where legislation required unanimity and there was no UK opt-in. Crime and policing legislation were third pillar issues. However, since the entry into force of the Lisbon Treaty on 1 December 2009, that distinction no longer applies. The first and third pillars have been merged and all JHA legislation is now decided by qualified majority voting and co-decision with the European Parliament.7

The so-called “emergency brake” applies for certain Treaty provisions. This allows a Member State to object to qualified majority voting being applied to legislation that would affect “fundamental aspects” of its criminal justice system.8 However, the emergency brake is a highly controversial and unreliable safeguard. It does not apply to all areas of criminal justice9, and its use is also ultimately subject to interpretation by the ECJ.10

There will be some who argue in favour of Britain being part of the integrationist trend. The pro-integration think-tank, the Centre for European Reform (CER), notes that “the emphasis of JHA policy is shifting from ‘cooperation’ to a limited form of ‘integration’, by enabling the EU to adopt and enforce more ambitious laws in this area.”11 It observes that Justice and Home Affairs legislation “is the Union’s fastest growing legislative area, with the possible exception of financial regulation”.12

The ECJ has a long history of extending the remit of EU institutions through judicial activism.13 This has recently been accompanied by the gradual development of case-law in criminal matters.14 Professor Mark Pollack notes that the ECJ has “extraordinary discretion to stray from the preferences of its principals”.15

5 See, for example, the European Commission, Towards an EU criminal policy: ensuring the effective implementation of EU policies through criminal

law, September 2011, available at: http://ec.europa.eu/justice/criminal/files/act_en.pdf

6 “State of the Union” speech by Jose Manuel Barroso, 12 September 2012, reported at: http://europa.eu/rapid/press-release_SPEECH-12-596_

en.htm?locale=en

7 House of Commons Library note of 19 July 2011

8 House of Commons Library note of 30 June 2011

9 House of Lords Select Committee on the European Union, Tenth Report of Session 2007-2008 (February 2008), paragraph 6.45,

available at: http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/6210.htm

10 House of Lords Select Committee on the European Union, Tenth Report of Session 2007-2008 (February 2008), paragraph 6.51,

available at: http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/6210.htm

11 H. Brady, Cameron’s European own goal: leaving EU police and justice cooperation, Centre for European Reform, October 2012, p. 2,

available at: http://www.cer.org.uk/publications/archive/policy-brief/2012/camerons-european-own-goal-leaving-eu-police-and-justice-co-o

12 H. Brady, Cameron’s European own goal: leaving EU police and justice cooperation, Centre for European Reform, October 2012, p. 8,

available at: http://www.cer.org.uk/publications/archive/policy-brief/2012/camerons-european-own-goal-leaving-eu-police-and-justice-co-o

13 Consider, for example, the cases of Van Gend en Loos (introducing the concept of EU treaties having direct effect); Costa v ENEL (introducing the concept that European law is supreme); and Francovich (the failure of member states to transpose a directive constitutes a breach of EC law for which member tates can be obliged to compensate individuals).

14 For analysis, see Professor Valsamis Mitsilegas, The Transformation of Criminal Law in the Area of Freedom, Security and Justice, Yearbook of

European Law (2007) vol. 26(1), 1

15 Mark A Pollack, The Engines of European Integration: Delegation, Agency and Agenda Setting in the EU (OUP, 2003), 382

The Court’s activism has been highlighted by UK Appeal Court Judge, Lady Justice Arden, who notes:

“The Luxembourg Court frequently acts as a constitutional court although does not always say so…Some of the rulings of the Luxembourg court have seismic impact on national systems.” 16

Examples of ECJ judicial activism

The ECJ’s activism in the field of justice and home affairs was illustrated in the Metock case17 in 2008. Four nationals of non-EEA states applied for asylum in Ireland. Their applications were rejected. However, in the meantime the men had married women from other EEA states who were exercising free movement rights in Ireland, and they reapplied. The Irish government refused each of the applications. Its regulations stated that rights under the Free Movement Directive did not apply to a family member unless the family member was already lawfully resident in another member state and was seeking either to enter Ireland with the EEA citizen or to join the EEA citizen in Ireland.

The Grand Chamber of the ECJ ruled that national legislation cannot require the third-country-national spouse of an EEA citizen to have been permanently lawfully resident in another member state before they can benefit from the Free Movement Directive, and that it is immaterial when and where their marriage took place and how the third-country national entered the host member state.18 The Metock ruling was highly controversial. Notwithstanding representations by the Austrian, British, Czech, Cypriot, Danish, Dutch, Finnish, Greek, German and Maltese governments, who agreed with the Irish authorities and feared that the ruling would make it harder for them to tackle illegal immigration, the ECJ effectively re-wrote EU and Irish immigration law.

Likewise, in the Maria Pupino judgment in 2005,19 the ECJ displayed its activist instincts. The case arose in the context of criminal proceedings in Italy against a former nursery school teacher accused of abusing young children in her care. The teacher opposed a request to allow eight children to testify outside the courtroom, on the basis that under Italian law, the special rules of procedure invoked by the prosecution were available only in instances of abuse of a sexual nature.20

However, the ECJ overrode Italian criminal procedure to require the children to be able to testify outside the court, on the basis of a Framework Decision that ought not to have direct effect.21 Numerous governments joined Italy in objecting to her being forced to change her national law, including the UK, France, Germany, Holland and Sweden. Academic expert Carl Lebeck of Stockholm University summarised Pupino as: “a bold attempt by the ECJ to ‘constitutionalise’ and thus also to ‘supranationalise’ a form of cooperation that was intentionally designed to keep the intergovernmental character intact (and thus also retain the ultimate domestic law-making powers with domestic parliaments).”22

16 Lady Justice Arden, Peaceful or problematic? The relationship between National Supreme Courts and Supranational Courts in Europe, Thomas More

lecture at Lincoln’s Inn, November 2009, para. 62 and 63,

available at: http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/arden-speech-thomas-more-lecture-nov2009.pdf

17 C-127/08, available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62008J0127:EN:HTML

18 House of Commons briefing, 9 February 2009, http://intranet.parliament.uk/briefing-papers/SN04900

19 C-105/03, available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62003J0105:EN:HTML

20 E. Spaventa, Opening Pandora’s Box: some reflections on the constitutional effects of the decision in Pupino, European Constitutional Law Review, (2007) 3 (1), pp. 5-24, available at: http://dro.dur.ac.uk/9326/1/9326.pdf

21 Professor V. Mitsilegas, The Transformation of Criminal Law in the Area of Freedom, Security and Justice, Yearbook of European Law (2007) vol. 26(1),

pp. 1-32, available at: http://yel.oxfordjournals.org/content/26/1/1.full.pdf

22 C. Lebeck, Sliding towards supranationalism? The constitutional status of EU Framework Decisions after Pupino, German Law Journal (2007),

8 German Law Journal 501-532

The operation of the UK opt-out needs to be clearly understood. It is a block opt-out. If the UK chooses to leave, as the Home Secretary has indicated is the government’s “current thinking”, it would leave every one of the EU’s unamended pre-Lisbon crime and policing laws.23 However,

this would not be the end of the matter. Having opted out, the UK could subsequently apply to participate in individual acts, on a case-by-case basis. It could then rejoin those which it deemed necessary or valuable. It would do so subject to the agreement of the other EU member states, which would vote on a proposal made by the Commission. The UK’s fellow member states would have a strong vested interest in the UK being part of the legislation in question, because of the UK’s level of expertise and experience. It would substantially weaken EU Justice and Home Affairs policy to try to isolate Britain. However, the UK would remain subject to the Commission’s enforcement powers and the jurisdiction of the ECJ in respect of those measures it chose to rejoin. Alternatively, given the current government’s commitment to repatriate powers from the EU, the government could explore alternative arrangements for opting back in – on a selective basis – that focus on practical law enforcement cooperation, without ceding democratic control to the Commission and ECJ. Both approaches require negotiation with our EU partners.

Given the importance of this choice, the government has committed to a vote in both Houses of Parliament before it makes its decision.24 In order to make their recommendation to Parliament, ministers have undertaken to gather and analyse relevant evidence.25 As a starting point for this process, in December 2011 the Home Secretary released a list of 133 measures which the government considers to be subject to the opt-out decision.26 This was revised to 135 in October 2012.27 This number may not be the final total. Every time the UK opts in to any measure that amends any pre-Lisbon crime or policing law, the replacement version is automatically subject to the extended powers of the ECJ and the Commission.28 At the time of writing, this has occurred seven times.

Despite this, the Home Office list of 135 laws is a good platform for an evaluation. The government’s commitment to undertake an internal audit is also welcome. However, there is a risk that the officials who drew up the list may be institutionally biased towards the retention of EU crime and policing laws that they originally advised the UK to sign up to. The purpose of this report is to offer an independent assessment of the legislation subject to the 2014 decision, and the choice the UK should make. Its approach is not ideologically for or against EU cooperation, even at a supra-national level. Rather, it is an attempt to make a sober cost-benefit analysis.

If the UK decides not to exercise its block opt-out, the UK will cede accountability and control to the EU institutions, marking a major democratic shift in authority from both the UK’s courts and Parliament over our criminal justice system. Such moves to harmonise criminal justice would impact on Britain’s ability to apply and develop its crime and policing laws in the national interest and according to the British common law. Britain’s common law tradition, shared to differing degrees with Ireland, Malta and Cyprus, leaves her in a minority in the EU, where civil law codes are much more common and have a greater influence on the development of EU law. The British common law and the UK justice system are different from many continental codes in material respects. The presumption of innocence, the principle of trial by jury and the emphasis on free speech are just three examples of major tenets of the British tradition that

23 House of Commons Hansard, 15 October 2012 column 35,

available at: http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm121015/debtext/121015-0001.htm#1210154000743

24 Europe Minister David Lidington gave this commitment in a written ministerial statement of 20 January 2011,

available at: http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/852/85205.htm

25 For example Home Office Minister James Brokenshire, speech at Open Europe debate, How much power should the EU have over Justice and Home Affairs?, 14 September 2011, available at: http://www.openeurope.org.uk/content/Documents/Pdfs/110914JHA.pdf

26 Letter from Theresa May to Lord Roper, 21 December 2011,

available at: http://www.parliament.uk/documents/lords-committees/eu-sub-com-f/cwm/protocol36optout.pdf

27 Letter from the Home Secretary and Justice Secretary to the Chair of the Home Affairs Committee, 15 October 2012.

28 For an in depth explanation of the operation of the UK Protocol, see Open Europe, An unavoidable choice: more or less EU control over UK policing and

criminal law, January 2012, available at: http://www.openeurope.org.uk/Content/Documents/PDFs/JHA2014choice.pdf

distinguish it from many other European traditions. This means that ECJ rulings have a particular potential to conflict with UK law. A report released by the CER in October 2012, arguing against exercising the UK opt-out decision, acknowledged that:

“The Lisbon reforms could potentially bring the differences between these two long-established traditions into conflict if EU criminal justice rules – or how they are interpreted by judges – radically change how criminal cases are heard throughout the Union.”29

It went on to note that:

“Britain’s concerns are hardly trivial or neurotic. The issue cuts to the bone of national sovereignty: criminal law defines the fundamental power relationship between the citizen and the state.”30

However, these uncontentious statements of fact are subsequently contradicted by the CER’s assertion that “claims to British legal exceptionalism are unlikely to convince other EU countries that [exercising] the block opt-out is anything other than a shallow political manoeuvre.”31 In fact, in addition to wider concerns about democratic accountability, Britain’s distinctive common law heritage is an important reason to be wary of increasing the powers and remit of the Commission and the ECJ.

Nevertheless, an assessment has to be made of the cost-benefit analysis of cooperation under each piece of EU legislation, coupled with an additional overarching assessment of the disadvantages of having to accept the ECJ’s and the Commission’s jurisdiction over them.

There are some who argue that there is an inbuilt advantage in the UK opting into the whole body of EU crime and policing law. Their first argument is that legislative harmonisation drives up standards of justice across the EU. This is reflected in the CER’s report on the UK opt-out, which states:

“Britain’s police chiefs and security services have their own frustrations and reservations about working within EU structures. But they acknowledge too that the Union is the only body with the legal and political clout to ensure minimum standards of justice across the continent…”32

This statement amounts to a triumph of hope over experience, and betrays an ideological approach to the opt-out decision, rather than an empirical cost-benefit analysis. Take the fight against corruption. Six of the 135 measures specifically address this issue, setting out definitions, penalties and jurisdictions. Yet between 2000 and 2010, the average score of the EU-27 in Transparency International’s Corruption Perception Index rose by only 0.07 on the scale of one to ten, from 6.23 to 6.30.33 In several member states, corruption has actually worsened over the last decade, including Bulgaria, Hungary, Italy and Greece.34 Greece is presently ranked 80th in the world, level with Colombia and El Salvador, while Italy is 69th – behind Cuba in 61st, and statistically much closer to Somalia, the most corrupt country in the world, than it is to New Zealand (the least corrupt).35

29 H. Brady, Cameron’s European own goal: leaving EU police and justice cooperation, Centre for European Reform, October 2012, p. 2,

available at: http://www.cer.org.uk/publications/archive/policy-brief/2012/camerons-european-own-goal-leaving-eu-police-and-justice-co-o

30 H. Brady, Cameron’s European own goal: leaving EU police and justice cooperation, Centre for European Reform, October 2012, p. 3,

available at: http://www.cer.org.uk/publications/archive/policy-brief/2012/camerons-european-own-goal-leaving-eu-police-and-justice-co-o

31 H. Brady, Cameron’s European own goal: leaving EU police and justice cooperation, Centre for European Reform, October 2012, p. 8,

available at: http://www.cer.org.uk/publications/archive/policy-brief/2012/camerons-european-own-goal-leaving-eu-police-and-justice-co-o

32 H. Brady, Cameron’s European own goal: leaving EU police and justice cooperation, Centre for European Reform, October 2012, p. 5,

available at: http://www.cer.org.uk/publications/archive/policy-brief/2012/camerons-european-own-goal-leaving-eu-police-and-justice-co-o

33 European Commission, The Fight against Corruption in the EU, June 2011, p. 3,

available at: http://ec.europa.eu/home-affairs/news/intro/docs/110606/308/1_EN_ACT_part1_v12%5B1%5D.pdf

34 Bulgaria scored 3.9 in 2001, but 3.3 in 2011. Hungary (5.3 to 4.6), Italy (5.5 to 3.9) and Greece (4.2 to 3.4) also all fell over this period.

See Transparency International, Corruption Perception Index (historic data).

35 Transparency International, Corruption Perception Index 2011, available at: http://cpi.transparency.org/cpi2011/results/

Similarly, when it comes to minimum standards of justice, the assertion that EU Justice and Home Affairs legislation to date has promoted a rising tide of good practice sits in stark contradiction to the reality in many EU jurisdictions. In October 2012, the human rights NGO, Fair Trials International, documented falling standards of pre-trial and fair trial safeguards across the EU.36 Between 2007 and 2011, the review showed a 250% increase in violations of pre-trial rights across the EU.37 Over the same period, violations of the right to a fair trial more than doubled. It is far from clear that EU Justice and Home Affairs legislation since 1997 has led to institutional improvements at a domestic level across the EU. Legislation is neither the same as, nor a substitute for, the kind of institutional capacity-building that raises real standards of justice in practice.

A second argument raised by the CER for opting into the EU’s crime and policing laws wholesale is that:

“If the block opt-out is used, Britain’s influence on the overall development of

EU crime and policing policy will be severely weakened.”38

This too appears to be an ideological statement, unsupported by empirical evidence. The CER cites an example of successful UK negotiation: “In 1998, it headed off calls for a Corpus Juris, a single body of criminal law and procedure to be applied uniformly in EU member-states”. Success in these terms is defined as mitigating proposals that are contrary to British interests, a policy of dilution not delivery. It is hardly surprising. Britain cannot realistically expect to have a decisive influence over negotiations involving twenty-six other member states. If the direction of travel in the EU is towards a pan European criminal code enforced by a European Prosecutor and the ECJ, it is difficult to see how Britain can do anything other than slow the arrival at that destination. In terms of pursuing a different, bespoke, relationship with the EU grounded in practical cooperation rather than supranational supervision, the exercise of the Lisbon block opt out is a unique opportunity to interrupt the integrationist drift and make the positive case for a more flexible approach.

The CER pamphlet makes a third argument for not repatriating EU crime and policing laws.

It states:

“Britain – free of most EU rules in crime and policing – would be likely to deepen cooperation in the so-called five-country group, an internal security cabal including Australia, Canada, New Zealand and the United States. Such a move would make bilateral cooperation with European partners more potentially problematic.”39

The CER posits a false choice for the UK between cooperation with the EU or the US and our Commonwealth partners. International law enforcement cooperation to tackle common cross-border crime and security issues is not a zero-sum game or a regional choice. The UK should seek to maximise its practical cooperation with the EU, the Commonwealth and its wider allies across the world.

The CER goes on to set out an alternative British approach to the 2014 decision, which would not ostensibly entail exercising the block opt-out. Its first proposal is that Britain should seek a political assurance from the European Commission that pre-Lisbon Justice and Home Affairs laws are not a priority for evaluation or infringement proceedings in the medium term. 40

36 FTI, Defence Rights in the EU, October 2012.

37 As reported in the Financial Times, 8 October 2012.

38 H. Brady, Cameron’s European own goal: leaving EU police and justice cooperation, Centre for European Reform, October 2012, p. 5,

available at: http://www.cer.org.uk/publications/archive/policy-brief/2012/camerons-european-own-goal-leaving-eu-police-and-justice-co-

39 H. Brady, Cameron’s European own goal: leaving EU police and justice cooperation, Centre for European Reform, October 2012, p. 10,

available at: http://www.cer.org.uk/publications/archive/policy-brief/2012/camerons-european-own-goal-leaving-eu-police-and-justice-co-o

40 EU Commission, Commission Work Programme 2012, November 2011, p. 13, available at:http://ec.europa.eu/atwork/pdf/cwp2012_annex_en.pdf

Second, the CER suggests that Britain could rely on the EU’s “emergency brake” procedure to stop initiatives threatening its common law traditions. However, the emergency brake is a highly controversial and unreliable safeguard. It does not apply to all areas of criminal justice41,

and its use is subject to interpretation by the ECJ.42

Third, the CER argues that the UK should make remaining in EU crime and policing policy conditional on reform of the European Arrest Warrant (the EAW). Finally, the CER suggests that the UK seek to negotiate a special treaty on security and migration areas between the UK and the Schengen area, allowing the UK to join Frontex (the EU’s border agency), the Visa Information System and to access data on persons refused entry at the EU’s common border.

Having criticised the exercise of the UK block opt out because of the apparent challenges of negotiating to opt back in on a case-by-case basis, the CER itself recommends an elaborate process of renegotiation, including a separate treaty. Either those negotiations would take place before deciding whether or not to opt in, in which case it would amount to a renegotiation of the terms of the block opt in – and the Lisbon Treaty – arguably a more complicated objective. Alternatively, the negotiation would take place after exercising the block opt in, in which case Britain would have sacrificed its negotiating leverage and the prospects of securing the desired outcomes would be severely damaged.

A wider fear is that EU member states may decide to snub the UK and refuse any flexibility, irrespective of the EU-wide interest in maintaining law enforcement cooperation with Britain, based on its level of involvement, expertise and intelligence capacities. In effect, this would amount to the EU saying – however unreasonably – that the UK must sign up to all or most of the relevant measures, and the Commission’s vision for EU JHA, or none, and face isolation. A hint of this was born out by the Commission’s threat to charge the UK millions of pounds to opt back in to measures on a selective basis.43 Such an approach would be divisive – amongst many member states, not just the UK – and serve neither British nor EU interests. If that is the approach EU partners take, it is hardly conducive to the confidence building required to develop operational cooperation. In any event, it would be better for Britain to know that it faces such a stark and uncompromising choice sooner rather than later.

In reality, the UK should assess the 2014 decision and future cooperation on the extent to which signing up to the EU’s crime and policing laws – en bloc or individually – offers tangible benefits for

UK law enforcement.

2.2. How to achieve a new model of cooperation

In this report, it is recommended that the United Kingdom should exercise its block opt-out regarding EU crime and policing laws which entered into force before the Lisbon Treaty. By

doing so, it will avoid becoming subject to the extended jurisdiction of the European Commission

and the European Court of Justice over these measures, which will come into effect from 1 December 2014. It will also serve notice that the UK will not follow other EU states on the road towards harmonisation of criminal law, enforced by an EU Public Prosecutor and the Commission and interpreted by the ECJ.

41 House of Lords Select Committee on the European Union, Tenth Report of Session 2007-2008 (February 2008), paragraph 6.45,

available at: http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/6210.htm

42 House of Lords Select Committee on the European Union, Tenth Report of Session 2007-2008 (February 2008), paragraph 6.51,

available at: http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/6210.htm

43 Reported widely, including by the Daily Telegraph, 16 October 2012,

http://www.telegraph.co.uk/news/worldnews/europe/eu/9610073/MPs-will-get-to-vote-on-EU-powers-opt-out.html

The opt-out could be exercised at any point until 31 May 2014. Because the body of law to which the block-out applies is reduced every time the UK opts in to a new EU law which either amends, repeals or replaces a pre-Lisbon measure, it would be sensible for the UK to do so at the earliest possible opportunity.

The real point of contention relates, after exercising the block opt-out, to the extent to which the UK should exercise its right to apply to opt back in to certain EU crime and policing laws, on a selective basis. Those choices are contingent on a cost-benefit analysis in each case.

In the line-by-line section below, each measure is assessed according to a number of criteria on the (often scarce) information available:

• Is cooperation under the relevant measure of net positive value to the UK?

• If it is a net positive for the UK, is legislation required to deliver it? Or would practical inter-state cooperation – either on a case-by-case basis or under a Memorandum of Understanding – suffice?

• If legislation is required, what is it required for? Is legislation required at EU level, or could it take the form of domestic legislation? Does it need to be subject to the jurisdiction of the Commission and the ECJ?

• Finally, if supranational EU legislation is necessary for a specific measure or institution, is it imperative that the UK sign up to it? Or could the UK remain outside the legislation and cooperate on a case-by-case basis?

These questions are relevant for three reasons. First, the current UK government is committed to repatriating powers from the EU, and therefore it is worthwhile considering whether there is a broader model that can allow for practical cooperation without ceding democratic control to EU institutions. Second, there is a precedent for such an alternative approach in Denmark’s JHA arrangements. Third, there is an evolving alternative model for UK cooperation with the EU illustrated by the UK’s involvement with Frontex, the EU’s external borders agency.

Frontex’s tasks include coordinating operational cooperation between national authorities on external borders; undertaking risk analyses and research on the control and surveillance of external borders; assisting in training border guards; and, potentially, supporting the running of joint return operations.44 The UK is not a party to the Frontex legislation, because it does not participate in the Schengen Area (the EU’s passport union, without internal borders). Despite this, it is closely involved with Frontex. The UK has taken part in Border Management Conferences aimed at promoting cooperation with non-EU countries, as well as pilot projects and training programmes. The Executive Director of Frontex, Ilkka Laitinen, states that the UK is “very active in participating in joint operations”, adding “in terms of risk analysis and also the joint operations, we do not see any difference between our UK colleagues and the others”.45 These operations include Operation Torino, which involved assisting with the Turin Winter Olympics of 2006, and Operation Agelaus, which dealt with unaccompanied minors arriving in member states in 2007.46 The UK only pays its share of the cost of those operations in which it participates. The UK also has a seat on Frontex’s Management Board. Although this only comes with ‘observer’ status, in the first two years of Frontex’s operation, the only decisions decided by a formal vote were the appointments of the Executive Director and the Chairman of the Board.47

The UK’s relationship with Frontex is not perfect. Some criticise the UK for seeking to take advantage of EU integration without being bound by it. Yet, this is true of all third-party

44 Migration Observatory, http://migrationobservatory.ox.ac.uk/policy-primers/uk-migration-policy-and-eu-law

45 House of Lords European Union Committee, 9th report of session 2007-08, Frontex: the EU external borders agency, paragraphs 121 and 124.

Available at: http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/60/60.pdf

46 House of Lords European Union Committee, 9th report of session 2007-08, Frontex: the EU external borders agency, paragraph 122

47 House of Lords European Union Committee, 9th report of session 2007-08, Frontex: the EU external borders agency, paragraph 124

cooperation with the EU over border controls. It is not inherently unreasonable for Britain to want to be a willing and active partner in cooperation, without ceding democratic authority. In any event, the pragmatic approach to UK involvement in Frontex demonstrates that practical cooperation with EU institutions for the purposes of law enforcement is possible in practice, without the need to sign up to the underlying legislation. It offers a rough and imperfect, but workable, alternative model for cooperation.

What emerges from the wider analysis in this report is that, while some of the EU crime and policing legislation is valuable, many instruments are flawed or of minimal operational relevance to the UK. In a number of cases, legislation masquerades as a substitute for practical cooperation. Most notably, there is not a single measure where the evidence suggests that the law enforcement cooperation desired necessitates ceding democratic control to supranational bodies. The development of the role of the Commission and ECJ can only be understood in terms of the drive towards harmonisation of criminal law and the vision of supranational governance under a European Public Prosecutor and the ECJ. In each case, the functional cooperation could be achieved through ad hoc bilateral or multilateral cooperation, cooperation pursuant to a non-binding Memorandum of Understanding (MoU) coupled as necessary with domestic implementing legislation, or – where an international legal basis is required – a treaty framework or EU instrument that is not supervised and enforced by the Commission and ECJ.

This does not mean that the UK should decline to opt back in to all of the 135 measures. However, it illustrates that the development of JHA cooperation is being driven by considerations beyond law enforcement cooperation, which have longer term implications for Britain given its distinctive legal model and justice system. There are some measures where there will be stronger arguments for Britain to opt back in, because of the absence of alternative options for cooperation and the views of EU partners.

For each measure, this report seeks to highlight the UK cost-benefit analysis based on available data and other information. The report does not seek to definitively determine the right course of action for each and every measure, after exercising the block opt out, but rather to shed light on their value to UK law enforcement based on empirical information available, and consider whether alternative models of cooperation could achieve the law enforcement aims desired. In some cases, the choice of approach will depend at least to some degree on the attitude and flexibility of other EU member states. As well as informing the approach to the block opt-out, the appraisal also highlights the case for Britain pursuing a new model of JHA cooperation in the future.

Taking this approach, the 135 pre-Lisbon EU crime and policing measures can be broadly divided into eight categories.

2.3. Category 1: Measures of practical value to the UK

Category 1 is made up of measures which are of practical value to the UK. There are 60 instruments in this category. The question is how the UK should best proceed to retain the benefits these measures bring, if the government exercises the opt-out decision.

Several of these measures deal with the pan-EU law enforcement agencies. These include the legal instruments governing Eurojust, the EU’s judicial cooperation body, and Europol, the European policing agency. Evidence demonstrates the relevance of these bodies to UK law enforcement. The UK authorities made 71 requests for assistance to Eurojust in 2011 – an average of over one a week. Meanwhile, Europol analysts have played a key role in assisting

major European criminal investigations – such as Operation Rescue in 2011. This exposed a large paedophile ring and led to 121 arrests in the UK alone. If the UK exercised its opt-out decision, it would want to continue its cooperation with these agencies. However, these

institutions are regarded by the Commission and EU federalists as stepping stones towards their broader ambition for a pan-European criminal code enforced by supranational EU institutions. Equally, the current evaluation of Eurojust and Europol is not entirely uncritical. Both have enjoyed rapidly rising budgets, with little formal means for evaluating their value for money, and widespread evidence of waste and inefficiency.

Eurojust and Europol: Value for Money?

The EU’s body coordinating prosecutorial cooperation, Eurojust, received a €15 million budget increase between 2007 and 2012 – an 83% rise.48 Its staffing costs rose by 102% over

this period (to €16.7 million).49 This increase was twice as large as that of the number of people employed by Eurojust (which rose by 50%, to 269).50 Half of this increase can therefore be attributed to rising salaries and benefits. There were also significant increases in spending on rent for office space (which doubled, to €5.5 million) and on Eurojust’s public relations and web presence, which tripled between 2008 and 2012 to €436,000].51

Individual items included the €33,000 Eurojust spent on its “end of year event” for 201152, and the two €60,000 contracts it took out for recruitment consultancy services and water coolers respectively.53 In March 2010, the agency signed a €300,000 contract with Mercedes-Benz in the Netherlands (the only bidder to supply vehicles).54

In terms of its caseload, the total number of cases referred to Eurojust by EU member states rose by a third between 2007 and 2011 (the latest year for which information is available), to 1,441.55 However, the number of cases closed fell from 1,063 in 2007 to 734 in 2011, a fall of 31%.56 The number of UK requests for assistance to Eurojust also fell during this period, by 32% to 71.57 The number of requests for assistance the UK received from Eurojust rose by 16%, to 197 in 2011.58

The EU policing body, Europol, saw an 80% rise in the number of cases in which it was involved between 2007 and 2011 – the latest year for which information is available. In 2007 it assisted with 7,618 cases, which had risen to 13,697 by 2011.59 Information is not published regarding the number of those cases which resulted in a prosecution or conviction.

48 For the 2007 figures, see EU Official Journal, Statement of Revenue and Expenditure for Eurojust for the financial year 2009,

Click to access Eurojust-budget-2009-EN.pdf

For the 2012 figures, see EU Official Journal, Statement of Revenue and Expenditure for Eurojust for the financial year 2012,

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2012:095:0093:0098:EN:PDF

49 Ibid

50 For the 2007 figures, see EU Court of Auditors, Report on the annual accounts of Eurojust for 2007, together with Eurojust’s replies (2008/C 311/21),

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:311:0142:0148:EN:PDF , Table 1

For the 2012 figures, see Eurojust, Annual Report for 2011, June 2012,

http://www.europarl.europa.eu/document/activities/cont/201207/20120725ATT49349/20120725ATT49349EN.pdf, p. 11

51 See footnote 1 above

52 Eurojust, Annual list of contracts 2011, http://eurojust.europa.eu/procurement/Documents/completed/annual-list-of-low-value-contracts-2011.pdf

53 Eurojust, Annual list of contracts 2009, http://eurojust.europa.eu/procurement/Documents/completed/annual-list-of-low-value-contracts-2009.pdf

and Eurojust, Annual list of contracts 2010, http://www.eurojust.europa.eu/procurement/Callsfortender20052010/Annual%20list%20of%20low-value%20

contracts%20concluded%20in%202010/annual-list-of-low-value-contracts-2010.pdf

54 Eurojust, Contract award notice, April 2010, http://eurojust.europa.eu/procurement/Documents/completed/CAN_09-EJ-60.pdf

55 Eurojust, Annual Report 2011,

http://eurojust.europa.eu/doclibrary/corporate/eurojust%20Annual%20Reports/Annual%20Report%202011/Annual-Report-2011-EN.pdf, Figure 1 (p. 69)

56 Ibid., Figure 3 (p. 71)

57 Eurojust, Annual Report 2007,

http://eurojust.europa.eu/doclibrary/corporate/eurojust%20Annual%20Reports/Annual%20Report%202007/Annual-Report-2007-EN.pdf, Figure 8 (p. 19)

and Eurojust, Annual Report 2011, Figure 7 (p. 75)

58 Eurojust, Annual Report 2007, Figure 9 (p. 19) and Eurojust, Annual Report 2011, Figure 8 (p. 76)

59 Europol, Annual Report 2007, p. 32, https://www.europol.europa.eu/sites/default/files/publications/annualreport2007.pdf and Europol Review 2011,

p. 30, https://www.europol.europa.eu/sites/default/files/publications/europolreview2011.pdf

Europol received a budget increase of €14 million between 2007 and 2011 – a 19% increase in its funding.60 The number of staff employed by the agency rose by 31% over this period, from 592 to 777.61 The number of British officials rose more rapidly – by 72% from 36 to 62.62

Detailed information on how Europol funds were spent is only available for the financial years 2010 and 2011. This reveals there was a 22% in-year increase on spending on catering (to €738,000), a 51% in-year increase on spending on “sports activities” (to €68,000), and a 53% in-year increase on spending relating to recruitment (to €242,000).63 In 2011, Europol also spent €122,000 on social events – double 2010’s €60,000.64

Individual contracts disclosed in 2011 included €60,000 on gym equipment and a combined €95,000 for a Mercedes-Benz staff car and minivan.65 In 2010, Europol spent €35,000 on a contract to deliver flowers to itself.66

The UK pays 11.5% of the Eurojust and Europol budgets through its EU contributions.

The UK should consider the full range of options for pursuing cooperation after exercising the block opt out. The UK might seek a relationship analogous to the Frontex model, whereby close operational cooperation is maintained and the UK participates in operations on a case-by-case basis or under an MoU. A MoU could establish a non-legislative but politically binding framework for cooperation, without giving the ECJ or the Commission the remit to determine how the UK must interact with these bodies. It would also be possible simply to opt back into these instruments at EU level, but this would involve the UK accepting the extended remit of the Commission and the ECJ over the relevant legislation.

Another Category 1 measure is the EU instrument which allows Joint Investigation Teams to operate on a cross-border basis within the EU. In the last three years, the UK has been involved in 14 such teams. An example of their usefulness was provided by Operation Golf, which successfully tackled people trafficking between the UK and Romania between 2007 and 2009. The UK can benefit from Joint Investigation Teams and it would be possible to opt back into this decision. Alternatively, the UK could seek to maintain the benefits of this system through an EU-wide MoU or treaty allowing UK police officers to participate in operations in other member states, under appropriate supervision (and vice-versa). This could be supported by domestic legislation setting out the terms under which those officers could operate in the UK. This would enable operational cooperation, but ensure UK courts retained the last word on sensitive security questions, such as the extent of the powers of foreign officers whilst operating on UK soil.

The UK’s involvement in the Schengen acquis also falls into Category 1. The UK partially participates in the Schengen acquis, with the primary purpose of connecting in due course to the second generation of the Schengen Information System (SIS II). SIS II is a database planned to hold information on both people and property of interest for reasons of either national security, border control or law enforcement.

It is unlikely the UK would opt into wider Schengen measures, in the immediate aftermath of the block opt out, given its historic reluctance to remove national border controls. However,

60 Europol, Annual Report 2007, p. 42 and Europol, Final Annual Accounts for the financial year 2011,

https://www.europol.europa.eu/sites/default/files/final_annual_accounts_for_the_financial_year_2011.pdf, p. 29

61 Europol, Annual Report 2007, p. 42 and Europol, staff statistics, https://www.europol.europa.eu/content/page/staff-statistics-159

62 Europol, Annual Report 2007, p. 43 and Europol, staff statistics, https://www.europol.europa.eu/content/page/staff-statistics-159

63 Europol, Final Annual Accounts for the financial year 2010,

https://www.europol.europa.eu/sites/default/files/final_annual_accounts_for_the_financial_year_2010.pdf, p. 19 and Europol,

Final Annual Accounts for the financial year 2011,

https://www.europol.europa.eu/sites/default/files/final_annual_accounts_for_the_financial_year_2011.pdf, p. 26

64 Ibid

65 Europol, annual list of contractors 2011 (https://www.europol.europa.eu/sites/default/files/annual_list_of_contractors_2011.pdf)

66 Europol, annual list of contractors 2010 (https://www.europol.europa.eu/sites/default/files/annual_list_of_contractors_2010.pdf)

cooperation on Schengen matters of national interest, including SIS II, could and should remain

part of a wider future dialogue on, and renegotiation of, UK cooperation under JHA policy. Practical cooperation could be pursued on an ad hoc basis and through MoUs and accompanying domestic legislation, without abolishing UK border controls or signing up to supranational legislation and enforcement. Similarly, current criminal record checks across the EU are beneficial, but require effective administrative cooperation on a bilateral level, rather than supranational control.

EU legislation on mutual legal assistance also falls into Category 1. This is important for facilitating cooperation in criminal proceedings. Such cooperation requires an underlying international legal basis defining the procedures for mutual legal assistance. However, as with

mutual legal assistance with other countries, there is no reason why this should be subject to supranational authority, which would give the Commission and ECJ authority over the UK justice system and British courts. The UK should explore whether it is possible to opt back in without becoming subject to Commission and ECJ supervision.

Further examples in Category 1 include the measure which allows the exchange of liaison magistrates between EU member states. Information supplied by the Crown Prosecution Service suggests that this programme helps the UK authorities to interact more effectively with their colleagues abroad.67 However, such exchanges could equally well be made on a bilateral basis, or under an EU-wide MoU. Likewise, both the EU’s directory of counter-terrorism specialists and the EU-wide database storing images of forged and genuine identity documents are useful resources, but not ones which require a supranational basis in order to function. Non-legislative options could be considered alongside the possibility of opting back into the measure.

A similar approach can be taken to other EU measures of an essentially collaborative nature. These include the EU’s peer evaluation mechanisms, which see periodic inspections take place regarding how effectively member states’ national crime-prevention arrangements function (for example, in counter- terrorism). They also include the European Police College, CEPOL, which trains senior officers based on EU best practice, and the EU-wide network to foster contact and cooperation between judges. UK participation in all of these arrangements could be provided for on the basis of ad hoc cooperation or MoUs rather than supranational legislation.

The final measure in Category 1 is the European Arrest Warrant (EAW), which provides for fast-track extradition between EU member states. It is a unique measure. The principle of EU-wide extradition for the purposes of law enforcement cooperation is sound. It requires an international legal basis, because of the need to implement clearly defined and legally binding procedures under domestic law. However, serious concerns have been raised over the operation of the EAW in practice.

Even the pro-integrationist CER acknowledges that:

“The EAW represents the greatest single encroachment on EU countries’ sovereignty in criminal justice. Interior ministers only signed up to it while under immense political pressure to advance EU internal security cooperation after the terrorist attacks of September 11th 2001.”68

In practice, the number of EAWs issued to the UK tripled from 1,865 in 2004 to 5,832 in 2011.69 Britain receives a disproportionate number of EAWs: in 2010, a third of all the EAWs issued across the EU were sent to the UK.70 This was four times as many as France received that

67 Parliamentary Question answer of 6 March 2012

68 H. Brady, Cameron’s European own goal: leaving EU police and justice cooperation, Centre for European Reform, October 2012, p. 4,

http://www.cer.org.uk/publications/archive/policy-brief/2012/camerons-european-own-goal-leaving-eu-police-and-justice-co-o

69 Parliamentary Question answer of 20 June 2012 and Parliamentary Question answer of 13 May 2011 to Chris Heaton-Harris MP,

http://services.parliament.uk/hansard/Commons/bydate/20110517/writtenanswers/part013.html

70 4,578/13,891 – see EU Council, 2010 information on operation of EAW, http://register.consilium.europa.eu/pdf/en/11/st09/st09120-re02.en11.pdf

year, and fifteen times as many as Poland.71 In addition to concerns about fairness, the scatter-

gun implementation of the EAW has put an operational strain on UK law enforcement.

The EAW net is now cast so widely that it is increasingly sweeping up innocent British nationals without proper checks to prevent miscarriages of justice. These cases have seen innocent British citizens subjected to corrupt police investigations, slow and incompetent justice systems and

appalling prison conditions.

According to the Metropolitan Police, this has put serious operational pressure on UK law enforcement authorities. It is also hugely costly. According to the European Parliament, each EAW costs £20,170 to process, including the cost of legal aid, police and court time, and translation and transport costs to return the suspect. This suggests the cost to Britain of processing the EAWs it received was at least £27 million in 2010. 72

Notwithstanding these problems, it is important to have an effective extradition system, and it requires an underlying international legal basis – as extradition relations with non-EU states demonstrate. If a number of modest reforms were made to the EAW, to ensure that it is used more proportionately and better protects innocent people from speculative charges, wrongful

arrest, and manifestly tainted evidence, the case for continued UK participation would be compelling.73

Since Britain is such a disproportionately large recipient of requests under the EAW, opting out en bloc in or before 2014 would leave the government in a strong position to press for such reforms as a condition of opting back in to the EAW. Fair Trials International have indicated that a number of countries share concerns about the operation of the EAW and would be open to considering reform, including Germany, Poland, France, the Netherlands, Slovenia, Romania, Cyprus and Malta. The UK should take this opportunity to maximise its negotiating leverage in pressing for reform as a condition of opting back in.

If the UK did not opt back in to this instrument immediately, arrangements under pre-existing multilateral European conventions would allow European extradition to continue, subject to stronger safeguards albeit longer delays.

2.4. Category 2: Measures intended to achieve legal harmonisation across

the EU

Category 2 addresses measures which are intended to achieve legislative harmonisation across the EU. There are 11 measures in this category. The UK has implemented the majority of these standard-setting measures, and transposed them into national law. Having done so, the EU legislation has served any purpose it had. It would not be necessary for the UK to continue to participate in the legislation at the cost of having to surrender jurisdiction to the European Commission and the ECJ.

Examples include the EU legislation banning the party drugs BZP and 4-MTA (a type of amphetamine). These are now classified as Class C and Class A drugs in the UK respectively, and the UK is therefore fully compliant with the EU legislation. Following an opt-out, it could rely on its own domestic law without the need to opt back into the supranational legislation. Likewise, the 2002 EU legislation designed to ensure member states have effective criminal regimes to combat people traffickers was promptly transposed by amendments to the Immigration Act 1971. There are wider questions on whether such standard-setting should be made in Brussels or

71 France received 1,156 EAWs in 2010. The UK received 4,578. EU Council, 2010 information on operation of EAW,

Click to access st09120-re02.en11.pdf

72 Sunday Telegraph, 14 October 2012, http://www.telegraph.co.uk/comment/telegraph-view/9606170/The-EU-Arrest-Warrant-serves-Britain-badly.html

73 The reforms can be found in full in the report by the Parliamentary Joint Committee on Human Rights, Fifteenth Report of 2010-12, The Human Rights

Implications of UK Extradition Policy, June 2011, http://www.publications.parliament.uk/pa/jt201012/jtselect/jtrights/156/15602.htm

by national democratic Parliaments. In any event, having implemented these specific measures, there would be no need for the UK to remain part of them, and subject to Commission and ECJ interpretation, following a decision to exercise the block opt-out.

An exception in this category is Council Framework Decision 2008/913/JHA, which is intended to set common standards against racism and xenophobia. This legislation criminalises condoning, denying or grossly trivialising genocide, war crimes or crimes against humanity. The balance between free speech and the criminal law varies from country to country within Europe. From a UK perspective, such behaviour is distasteful and may be offensive, but criminalising it is not necessarily an appropriate legislative response, given the potentially chilling effect on free speech and matters of legitimate historical debate. For that reason, the UK has not implemented this part of the EU instrument. It is not necessary for the UK to opt back into this measure, because it can and should decide for itself the balance between criminalising hate speech and the boundary with free speech and matters of legitimate public debate. Furthermore, it would be undesirable for the UK to cede authority to the ECJ and the Commission over the interpretation of such legislation, which ought to remain the prerogative of elected lawmakers and the UK Supreme Court.

2.5. Category 3: Measures of little, if any, use to the UK

Category 3 measures are of little, if any, use to the UK. There are 11 instruments in this category. These EU laws have proved to be of minimal use to the UK authorities, and the UK could opt out of these with few practical consequences.

A good example of a Category 3 measure is the 1998 Council Act drawing up the Convention on Driving Disqualification – legislation designed to ensure that driving bans can be enforced for offences committed in other member states. However, only the UK and Ireland have implemented this legislation, and then only since 2010. In the first two years of its operation, the Driver and Vehicle Licensing Agency received 37 notifications of British drivers disqualified in Ireland, and sent six back. If the UK opts out of the pre-Lisbon crime and policing laws, it could still legislate at national level to recognise the disqualification of drivers abroad, without the need to remain subject to supranational EU law and institutions.

Similarly, the UK has never seconded any officials to the European Network for the Protection of Public Figures, nor has it provided any financial contribution to it in any of the last five years. Maintaining security for public figures is important. However, the legislation establishing this organisation appears to be of marginal significance to the UK. Following an opt-out decision, the UK could still cooperate with the European Network for the Protection of Public Figures under a MoU, or on the basis of the of ad hoc cooperation. It would also be possible to work bilaterally with countries where key British dignitaries or officials are visiting, as occurs for visits to non-EU countries around the world.

Another Category 3 measure involves the mutual recognition of freezing orders. This instrument establishes rules under which member states should recognise and execute freezing orders for property or evidence issued by the judicial authority of another member state in the context of criminal proceedings. The legislation was passed in 2003. Since then, according to the Home Office, the UK has never submitted a freezing order to another member state, and has only executed one it has received from abroad (out of four requests). This low level of uptake suggests minimal value. Equally, a multilateral MoU establishing this system between the UK and its fellow member states, combined with UK domestic legislation, would allow cooperation to continue in the future.

2.6. Category 4: Measures which duplicate existing UK law

Category 4 instruments are of minimal value to the UK because they duplicate laws and standards that were already maintained by the UK authorities before the EU legislation was introduced. They therefore amount to a superfluous body of legislation. Having opted out of the EU’s pre-Lisbon Treaty crime and policing laws, the UK could remain outside such measures.

There are 11 instruments in this category. Examples include EU anti-drugs legislation dating from 2002 and 2003 to ban drugs including PMMA (linked to ecstasy overdoses) and TMA-2 (an amphetamine derivative). In both cases, the UK had banned these drugs since 1977. Similarly, Council Framework Decision 2005/212/JHA requires EU member states to be able to effectively confiscate the proceeds of crime. The UK’s Proceeds of Crime Act 2002 meant that no changes needed to be made to comply with this EU decision.

Other instruments in this category cover counter-terrorism, extradition, organised crime and drug trafficking. In all of these cases, UK domestic legislation renders the EU legislation superfluous. If the measures are amended in the future, the UK can decide whether or not to follow such changes as a matter of domestic law without opting back in.

2.7. Category 5: Measures whose impact is unknown

Category 5 measures are characterised by a lack of adequate data to monitor their effectiveness. There are 16 instruments in this category. They include the 1997 Council Act drawing up the Convention to fight corruption involving EU and national officials. The Convention may be a worthwhile measure. However, there is no means of knowing, because the last government failed to maintain any official data about the number of EU officials convicted of corruption offences in the UK, and made no assessment of the overall effectiveness of the Convention. In the event of a UK opt-out, the UK could continue to maintain relevant cooperation and standards through its own domestic legislation.

Another measure in this category creates a system for transmitting samples of controlled drugs between EU states, either to be investigated or to be used as the basis for a prosecution. The value of this system cannot be quantified, because data is not held about the number of such transfers to and from the UK. In any event, any necessary practical cooperation could be pursued through a MoU between the UK and the EU rather than supranational legislation.

Other measures lacking sufficient data for a meaningful assessment include legislation establishing national football intelligence points (to coordinate efforts against football hooliganism), legislation to alert law enforcement agencies when suspected war criminals apply for residence permits and legislation requiring member states to respond to urgent requests for available information or intelligence within eight hours. More detailed information would be required before a final decision could be taken on whether these instruments tangibly benefit the UK, and whether cooperation could be pursued through alternatives to opting back into the relevant measure.

In relation to many of these measures, it is impossible to evaluate their overall value or relevance to the UK. It is extraordinary that the previous government signed Britain up to so many supranational measures without any mechanism for monitoring or evaluating their operational performance. The last government’s ‘hit and hope’ approach to JHA opt in decisions betrays a lack of rigour and has undermined the UK’s ability to assess on an empirical basis their law enforcement value.

2.8. Category 6: Measures which have not been implemented in the UK

Category 6 measures have not been implemented by the UK. There are 7 instruments in this category. Opting out would therefore present no immediate risk for the UK. The UK does not have to proceed to implement these instruments at all. The Commission does not have the power to bring infringement proceedings against the UK, nor does the ECJ have jurisdiction over the UK, for non-implementation of Framework Decisions.74

Some of these instruments may be brought into force at a future date (either specified or as yet undetermined). They include the Prüm measures, which are designed to allow the exchange of data on DNA profiles, fingerprints and vehicle registrations. As of March 2012, only 13 states were exchanging this data.75 The UK is not among them.

There are significant concerns regarding such widespread sharing of data under the Prüm measures. In the UK, DNA samples are currently taken from those arrested on suspicion of a recordable offence. In practice, this means any offence punishable with imprisonment. However, in most EU states fingerprints and DNA are kept and held only for serious crimes.76 In 2005, the UK had the largest DNA database in the world, half as large again as those of all the other EU member states put together.77 At the time, 5.2% of the UK population was on the database. This compared to an EU average of just over 1%, and 0.5% in the United States.78 As the House of Lords European Union Committee observed:

“The threshold for holding DNA profiles on the United Kingdom DNA database is far lower than in any other member state, and the proportion of the population

on the database correspondingly far higher.”79

The House of Lords Committee also noted that “the cost to the United Kingdom of supplying information to other states may be one of the highest, given the size of its DNA database.”80 In the same way that the UK has received a huge volume of requests under the European Arrest Warrant system, so the UK authorities could expect to face major demands on their time and resources if the Prüm measures are implemented.

The size of the UK’s DNA database has expanded further since 2005. In January 2012, 5.5 million people had their DNA retained on the database – equivalent to 8.7% of the UK population.81

The UK database contains information on people who gave DNA samples but who were subsequently found innocent of any crime. As of 2010, nearly 1.1 million innocent Britons’ DNA was stored on the database.82 There is a big distinction between sharing data on convicted criminals and mass data sharing on citizens, who under British principles of justice are innocent until proven guilty.

The risk to innocent individuals remains despite the Protection of Freedoms Act 2012, which banned the retention of DNA from individuals arrested on suspicion, but not convicted of,

74 This is confirmed by the House of Commons European Scrutiny Committee, Nineteenth Report of session 2010-12 (March 2011), section 14,

http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/428-xvii/428xvi16.htm

75 C. Jones, Complex, technologically fraught and expensive: the problematic implementation of the Prüm Treaty, Statewatch, June 2012, p. 1,

Click to access no-197-Prüm-implementation.pdf

76 House of Lords European Union Committee, Eighteenth report of session 2006/07, Prüm: an effective weapon against terrorism and crime? (2007),

p. 16

77 House of Lords European Union Committee, Eighteenth report of session 2006/07, Prüm: an effective weapon against terrorism and crime? (2007), p.17. Based on Home Office figures from 2005 showing that 5.24% of the UK population was on the database. Austria was the member state with the next highest proportion (0.98%).

78 Ibid

79 House of Lords European Union Committee, Eighteenth report of session 2006/07, Prüm: an effective weapon against terrorism and crime? (2007),

p. 17

80 House of Lords European Union Committee, Eighteenth report of session 2006/07, Prüm: an effective weapon against terrorism and crime? (2007),

p. 24

81 Big Brother Watch, The National DNA database, June 2012, p. 28. Figures from the National Policing Improvement Agency. The UK population is e

stimated to number 63 million people (Herald Scotland, 17 July 2012,

http://www.heraldscotland.com/mobile/news/home-news/population-of-uk-has-risen-to-more-than-63-million.18163550).

82 Hansard, written answer by James Brokenshire MP to Andrew Percy MP, 3 March 2011, column 539W,

http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110303/text/110303w0002.htm#11030356000724

minor offences. In 2011, the Home Office disclosed that because DNA profiles are stored in bundles, existing profiles from innocent people will not be deleted, but only anonymised.83

The risk that data sharing under Prüm would pose to innocent individuals is multiplied because the standard of DNA matches required for a “hit” under the Prüm decision is 40% less accurate than that used in the UK.84 Public trust in government’s ability to safeguard our personal data has suffered as a result of a number of fiascos.85 If Whitehall cannot protect your privacy, what chance when the data is shipped off to Warsaw?

In light of these considerations, the UK has not yet exchanged any data with other EU member states under the terms of the Prüm regime.86 The case has not been made that the UK should opt into the two Prüm decisions following an opt-out decision. The risks of scatter-gun data sharing on a massive scale with the UK’s EU partners outweigh the benefits – especially given the risk of innocent people being caught up in foreign investigations. Furthermore, the UK would be wary of ceding democratic control of this sensitive process to the Commission and the ECJ.

Following an opt-out decision, the UK could instead negotiate a separate, bespoke, measure with greater legal safeguards to allow EU members to access the UK DNA database, and vice versa. This could take place under a MoU or on an alternative legal basis.

Another example of legislation that is yet to be implemented is Council Framework Decision 2006/783/JHA, which provides for the mutual recognition of judicially-imposed confiscation orders between member states. Six years on from the legislation being passed, the government notes that “Implementing the Framework Decision will be complex for a number of reasons, including because it will require changes to the current UK restraint and confiscation regime and changes to primary legislation.”87

Other instruments in this category have not been implemented, and no date has been set for this to happen. Instruments of this nature include the European Evidence Warrant (where implementation in the UK has been suspended following the decision to opt in to the European Investigation Order), legislation to transfer the supervision of probation measures and suspended sentences between member states and legislation to resolve conflicts of jurisdiction in criminal proceedings. These are measures the UK signed up to without any need or subsequent law enforcement gain. Britain can safely remain outside these measures.

2.9. Category 7: Measures which are redundant

Category 7 is for EU crime and policing measures which are redundant. This section contains 9 measures. Some of these instruments have been formally repealed and replaced since the passing of the Lisbon Treaty, and are therefore no longer in effect. Their replacement measures fall outside the terms of the 2014 opt-out decision, and the UK cannot therefore repatriate powers over this legislation. These include the 2002 EU Council Framework Decision on preventing and combating trafficking in human beings and the 2004 Council Framework Decision on combating the sexual abuse and sexual exploitation of children, both of which were replaced by new pieces of legislation in 2011.

83 Joint Committee on Human Rights, Eighteenth Report of 2010-12, Legislative Scrutiny: Protection of Freedoms Bill, September 2011,

http://www.publications.parliament.uk/pa/jt201012/jtselect/jtrights/195/19505.htm

84 C. P. van der Beek, Forensic DNA Profiles Crossing Borders in Europe (Implementation of the Treaty of Prüm), 2011, http://www.promega.com/

resources/articles/profiles-in-dna/2011/forensic-dna-profiles-crossing-borders-in-europe/, EU DNA “matches” must meet a minimum standard of six

loci. In the UK, laboratories use 10 loci-matches to generate profiles. BBC, 17 October 2011, http://www.bbc.co.uk/news/science- environment-15311718. The number of matches required by the Prüm decision is lower to enable interaction between the different national databases

across the EU, which operate in slightly different ways.

85 Including the loss of 25 million child benefit records by HMRC in 2007. Various sources, including the BBC, 21 November 2007,

http://news.bbc.co.uk/1/hi/7104945.stm

86 Parliamentary Question answer of 28 February 2012

87 House of Commons European Scrutiny Committee, Nineteenth Report of session 2010-12 (March 2011), section 14,

http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/428-xvii/428xvi16.htm

Other category 7 measures include the 2007 EU-US agreement on the exchange of Passenger Name Record (PNR) data, which was replaced by a fresh agreement concluded in April 2012, and the equivalent agreement between the EU and Australia (signed in 2011). There is also legislation from 1998 establishing a system for providing information alerts about counterfeit documents between member states. This has now been superseded by the European Image Archiving System – a fully computerised archive. There is no reason for the UK to opt back into this obsolete legislation following an opt-out decision.

2.10. Category 8: Measures which do not directly affect the UK

Category 8 is reserved for 10 EU crime and policing measures that do not directly affect the UK. The majority of these concern agreements approving the exchange of classified information between the institutions of the EU – not their member states – and various other countries, including the United States, Russia, Ukraine, Croatia, Bosnia Herzegovina, Switzerland, Norway, Iceland and Macedonia. Given that this legislation governs the exchange of information at EU level, following an opt-out decision, there is no reason for the UK to opt back into

this legislation.

The other instrument in this category extends the EU’s extradition treaty with the United States to cover the small Caribbean islands of the Netherlands Antilles and Aruba. Since this relates to US extradition with the Dutch overseas territories, the UK

could safely remain outside this agreement following an opt-out decision.

3. 135 EU CRIME AND POLICING MEASURES: EVALUATION OF MEASURES88

3.1. Category 1: EU crime and policing measures which are of practical

value to the UK

The measures in this category are deemed of practical value to the UK. The question is how best to retain the benefits these measures bring, if the UK exercises its block opt-out.

Protection of the European Communities’ financial interests

Document 1, the Council Act of 26 July 1995 drawing up the Convention on the protection of the European Communities’ financial interests, together with Document 8, the Council Act of 27 September 1996 (its amending protocol), require member states to take the necessary measures to ensure that fraud against the EU is punishable. Article 6 places a specific emphasis upon cooperation between member states in both the investigation and the prosecution of fraud. This cooperation has been ongoing between the UK authorities, other member states and the European Anti-fraud Office, OLAF, over the last five years. The Serious Fraud Office is currently handling two cases referred to it by OLAF, and assists with cases involving other member states as necessary.89

This is important work, and represents a positive development from the UK perspective. Fraud has been a recurrent problem within the EU for many years. The European Court of Auditors has refused to sign off on the European Union’s accounts for the last 17 years, citing an unacceptable level of irregularities.90 There have been some, limited, signs of improvement: in July 2012 the European Commission reported that fraud against the EU budget fell by 35% in 2011.91

In the aftermath of a UK opt-out, it would be possible for the UK to apply to rejoin the convention. However, a proactive approach to tackling fraud could also be adopted, without the need for the UK to sign up to supranational legislation. The UK government already emphasises the importance of “various forms of voluntary cooperation” in this area.92 Following a UK opt-out, these could presumably be extended via cooperation on a case-by-case basis, or an MoU agreeing common standards to uphold. Provided that the UK has the domestic legal basis to prosecute anti-EU fraud and is willing to cooperate, there is no obvious reason to opt back in to this measure.

Exchange of magistrates

Document 2, EU Council Joint Action 96/277/JHA, is a measure establishing a framework for the exchange of magistrates with special expertise in judicial cooperation between EU members, to increase the speed and effectiveness of this cooperation. The Crown Prosecution Service is responsible for the posting and management of the UK liaison magistrates to France, Italy and Spain.

The experience of the Crown Prosecution Service is that the UK liaison magistrates have enhanced bilateral judicial co-operation, including in complex transnational cases involving major criminality. UK involvement has been instrumental in the successful conclusion of major investigations and prosecutions. Still, implementation remains limited. The Home Office hosts liaison magistrates from just France and Italy.93

88 All document numbers cited below are for ease of reference to the revised list of 135 published by the Home Office in October 2012. A full table

listing these documents in their relevant categories is attached as Appendix 1.

89 Parliamentary Question answer of 28 February 2012. All Parliamentary Questions referred to are replies to Dominic Raab MP, unless otherwise stated.

90 Daily Telegraph, 22 February 2012, http://www.telegraph.co.uk/news/worldnews/europe/eu/9097659/Britain-refuses-to-sign-off-on-EU-budget.html

91 European Commission press release, 19 July 2012, http://europa.eu/rapid/pressReleasesAction.do?reference=IP/12/809&

92 Parliamentary Question answer of 28 February 2012

93 Parliamentary Question answer of 6 March 2012

This remains a worthwhile initiative for the UK. However, it does not require a supranational legislative framework to function effectively. In the event of a UK opt-out, these arrangements could be conducted on a bilateral basis between member states without the need for the UK to opt back into supranational legislation subject to the ECJ. Given the reciprocal benefits of magistrates sharing information and expertise, EU partners would be likely to wish to continue to gain the benefit of UK experience.

Directory of specialised competences amongst national counter-terrorist agencies

Document 3, EU Council Joint Action 96/610/JHA, establishes a directory of the specialised competences in counter-terrorism amongst the national counter-terrorist agencies of the EU member states. This seeks to assist EU member states through a shared understanding of their respective specialisms which might be made available to respond to requests for assistance received from other member states.

The directory can be a useful tool for the UK, and the government emphasises that it continues to value working-level cooperation with other EU member states to combat the threat from terrorism.94 However, following a UK opt-out there would be no need to apply to rejoin the EU legislation, nor even legislate domestically. The directory could just as well be maintained on the basis of practical administrative cooperation between the UK and the other member states. Other EU countries would have a common interest in allowing the UK to participate in this way, given the range of technical expertise the UK brings to counter-terrorism.

Encourage customs authorities of member states to develop Memoranda of Understanding with business organisations to combat drug trafficking

Document 4, EU Council Joint Action 96/698/JHA is designed to encourage the customs authorities of member states to develop Memoranda of Understanding with business organisations operating in the EU to combat drug trafficking. The measure sets out some suggestions for what such MoUs might contain. It also requires member states to periodically review the operation and implementation of individual MoUs.

This measure is a good example of a practical idea which does not require legislation to function. Indeed, evidence from the Home Office reveals that seven of the UK’s twelve MoUs in this field predate the 1996 Council Joint Action.95 Article 1 of the Council Joint Action acknowledges the “already cooperative relationship” between customs authorities and business to fight drug traffickers.

The UK’s MoUs have mainly been concluded with EU-based airlines and other freight and passenger carriers. They are principally applied by the UK Border Agency, which keeps their operation and coverage under review.96

Following a UK opt-out decision, there would be no need for the UK to opt back into this legislation. Maintaining and building on the existing MoUs is in the national interest. There is no need for the UK to be subject to binding supranational EU legislation to achieve this.

Exchange of information regarding illegal drugs between member states

Document 5, EU Joint Action 96/699/JHA, is a measure to exchange information regarding illegal drugs between member states. It designates the Europol Drugs Unit as the central authority for submitting chemical profiles of drugs, and sets out the format in which this information should be submitted. The Serious Organised Crime Agency (SOCA) transmits this

94 Parliamentary Question answer of 29 February 2012

95 Parliamentary Question answer of 12 March 2012

96 Parliamentary Question answer of 12 March 2012

information on behalf of the UK forensic science laboratories. Ministers state that sharing this information allows evidential material relating to drug seizures to be maximised, strengthening understanding of the UK drugs market.97 This is a sensible arrangement, but not one which would require the UK to rejoin this supranational legislation in the aftermath of an opt-out decision. UK submission of information on drug profiling could be continued on the basis of

non-legislative arrangements.

Peer evaluation of member states’ application and implementation of EU and other international acts and instruments in criminal matters

Document 13, EU Joint Action 97/827/JHA, provides for peer evaluation teams to periodically review member states’ application and implementation of EU and other international acts and instruments in criminal matters. The evaluation team for each member state is constituted of three experts, who cannot be nationals of the member state in question. The evaluation process consists of a questionnaire, followed by a visit from the evaluation team to meet the relevant authorities in the member state. A report is then drafted which the member state has the opportunity to comment on. The EU Council is informed of the results of these evaluation exercises in due course. The Council can, if it sees fit, address recommendations to a member state and may invite it to report back on progress.

To date, five evaluation reports have been conducted across the EU. These have covered mutual legal assistance in criminal matters (1999-2001); law enforcement against drug trafficking (1999-2003); exchange of information and intelligence between Europol and member states and among member states (2002-2007); the European Arrest Warrant (2006-2009); and financial crime and financial investigations (2008-2011). The next evaluation round, scheduled to be completed by 2014, will consider the implementation and operation of the Decisions on Eurojust and the European Judicial Network.

Whilst the quality and value of the reports to date is limited, the government supports the concept of peer evaluations to promote more effective working between member states in the fight against cross-border crime.98 However, there is no need for the UK to opt back into binding supranational legislation to ensure that such evaluations take place.

Facilitate mutual legal assistance in criminal matters

Document 16, Council Joint Action 98/427/JHA, is a measure designed to facilitate mutual legal assistance in criminal matters between member states. The UK will consider requests for various forms of assistance, including witness and suspect evidence, banking and

telecommunication evidence, the restraint and confiscation of assets, search and seizure (where the alleged conduct is also an offence in the UK) and passport information and immigration status.99

This legislation sets out a series of steps countries should take when submitting requests for assistance or when they receive such a request. For issuing states, these steps include providing names and contact details and clearly identifying any deadlines for the request, as well as a commitment not to mark minor requests as urgent. Executing states are required to acknowledge requests when asked to and to give priority to requests which are marked urgent. Ministers comment that many of these recommendations are standard in relation to the operation of Mutual Legal Assistance and the UK undertakes them as a matter of course.100

Similarly, Document 112, (SCH/Com-ex (93) 14), concerns mutual legal assistance in drug trafficking cases. Contracting parties undertake that when they cannot observe a request for

97 Parliamentary Question answer of 5 March 2012

98 Parliamentary Question answer of 5 March 2012

99 Home Office, Requests for mutual legal assistance in criminal matters – guidelines for authorities outside of the United Kingdom (September 2012),

http://www.homeoffice.gov.uk/publications/police/operational-policing/mla-guidelines?view=Binary

100 Parliamentary Question answer of 5 March 2012

mutual assistance, either in full or in part, they will inform the requesting party of the reasons for their refusal and, where possible, of the conditions to be met before the request can be enforced.

Document 25, Council Act 2000/C197/01, establishes a supplementary Convention on Mutual Assistance in Criminal Matters. The Convention is intended to aid the smooth processing of investigations, including the service of documents (Article 5) and the hearing of witnesses and experts by telephone conference (Article 11). However, some measures receive minimal use. For example, Article 9 allows suspects to be temporarily transferred between member states for the purposes of investigation. The UK Central Authority within the Home Office deals with requests for temporary transfer of persons in custody for the purposes of criminal investigations in relation to England, Wales and Northern Ireland. In the last ten years there have been no such transfers under Article 9.101 Likewise, Article 18, which allows member states to request fellow member states to intercept, transmit and record telecommunications, has been used infrequently. Since 2002, the UK has not made any requests to any other member states. In return, the UK has received 16 such requests, of which only six were granted.102

These measures are important for facilitating cooperation in criminal proceedings. This is reflected in the large number of mutual legal assistance requests that are processed by the UK authorities each year. Between 2009 and 2011, the UK accepted 6,846 incoming requests for mutual legal assistance, of which 82% (5,626) came from EU member states.103 Outgoing mutual legal assistance requests are, in most cases, sent directly by a UK prosecuting authority (e.g. the Crown Prosecution Service), rather than via a central authority. Therefore there is no central record of all outgoing requests to EU member states.104 However, it is likely that there is also a substantial flow in this direction.

Document 32, EU Council Act 2001/C 326/01, established a Protocol to the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union. It states that member states must be able to respond to requests from other member states regarding whether a natural or legal person holds or controls bank accounts in its territory, and if so, to provide details of the identified accounts (Article 1). Similarly, member states must be able to provide fellow EU members with information on the transactions carried out from these accounts (Article 2). Finally, member states may also request other member states to monitor the banking operations being carried out through one or more accounts and to communicate the

results to them (Article 3). In this last case, the decision regarding whether to monitor a bank account rests with the competent authorities of the requested member state. A lack of data prevents a proper evaluation of this measure. Outgoing requests are issued directly by UK prosecution agencies and other judicial authorities and are not recorded by the Home Office. The UK Central Authority (UKCA) within the Home Office deals with incoming requests only in relation to England, Wales and Northern Ireland. This legislation is not the exclusive means by which member states may request banking information, and the UKCA records do not distinguish

between requests made under this Act and those made on any other legal basis. Neither do they distinguish between requests under Articles 1 and 2. To date, no requests have been received to monitor a bank account under Article 3, and any such requests may not be separately recorded if made alongside a request under Article 1 or Article 2.105

Taken together, the UK should consider opting back into the EU measures in this area, because such cooperation requires an underlying international legal basis defining the procedures for mutual legal assistance. However, as with mutual legal assistance with other countries,

101 Parliamentary Question answer of 12 March 2012

102 Parliamentary Question answer of 14 March 2012

103 Figures disclosed in response to a Freedom of Information request to the Home Office, available at:

http://www.homeoffice.gov.uk/about-us/freedom-of-information/released-information1/foi-archive-crime/22047-criminal-matt-UK-cent-aut/22047-

criminal-matt-UK-cent-aut?view=Binary

104 Information provided by the Home Office to the House of Commons Library, 16 October 2012.

105 Parliamentary Question answer of 14 March 2012

there is no reason why this should be subject to supranational authority, which would give the Commission and the ECJ authority over the UK justice system and British courts. The UK should explore whether it is possible to opt back in without becoming subject to Commission and ECJ supervision.

Identification and tracing of suspected proceeds from crime

Document 17, Council Joint Action 98/699/JHA, provides that member states shall ensure that their legislation and procedures enable them to permit the identification and tracing of suspected proceeds from crime at the request of another member state when there are reasonable grounds to suspect that a criminal offence has been committed. Such requests are to be given equal priority to domestic investigations.

Government statistics reveal a small but steady number of requests under this legislation. In 2010, the UK received three requests for assistance, and in turn submitted eight to other member states. In 2011, the UK received two requests and issued six of its own.106

The aims of the legislation are positive. Following the block UK opt out, the UK could either opt back in or seek to continue cooperation could on the basis of a MoU. This would avoid the ECJ and the Commission gaining the authority to rule on potentially grey areas of the legislation – such as whether member states are taking “all necessary steps” to prevent the risk of assets being dissipated (Article 5).

European Image Archiving System

Document 18, Council Joint Action 98/700/EU, is another measure of an essentially administrative nature. It established the European Image Archiving System, now known as FADO (False and Authentic Documents Online). FADO is a computer database accessible by member states which is designed to store images of both forged and genuine documents, as well as summary information on forgery techniques. This information can be of value to the authorities in the UK when confronted with, for example, identity documents which they mistrust.

FADO is available on three levels: (i) FADO for expert users only, (ii) iFADO, an intranet version for control authorities and (iii) PRADO, which contains strictly limited information for public use. Initial work concentrated on the uploading of EU identity documents only but efforts are now underway to include source documents also as well as non-EU documents. The system currently holds in excess of 1,500 documents and is available to the police and all government departments which have a need to verify identity documents.

The government states that owing to the nature of the set-up “it is difficult to say with any certainty how often FADO is accessed in the UK”. Anecdotal evidence from the UK Border Agency, the police and other Government Departments suggests that it is widely used.107

FADO is a useful resource, enabling the UK to access information at an EU-wide level. However, it does not require a supranational basis or jurisdiction. Following a UK opt-out, the UK could seek to continue to work with this database either on a voluntary basis, or via a MoU with its fellow EU member states.

Financial Intelligence Units

Document 27, Council Decision 2000/642/JHA requires member states to designate Financial Intelligence Units (FIUs) to act as centres to assemble, analyse and investigate evidence of money laundering. Fellow member states can then request information that may be of assistance to their own national authorities. The UK’s designated FIU is the Serious Organised

106 Parliamentary Question answer of 12 March 2012

107 Parliamentary Question answer of 8 March 2012

Crime Agency. The evidence supplied by the Home Office shows that this measure is well used, with the UK receiving 506 incoming requests for information in 2010, and issuing 639.108 This volume of uptake suggests that this measure is of value in combating money laundering in the EU, and helps the UK authorities.

Following a UK decision to exercise the block opt-out, the UK could continue cooperation on a voluntary basis or establish an MoU with the other EU member states to continue this data sharing service. Given the high volume of requests the UK receives, it is likely that EU partner states would be keen to see continued cooperation with the UK in this area.

Alternatively, the UK could reapply to rejoin this legislation at EU level. However, this would involve accepting the ECJ and the Commission’s status as final arbiters regarding the FIU system – including over sensitive issues such as the circumstances under which states can refuse requests for information, as well as data protection issues.

Eurojust

Document 35, Council Decision 2002/187/JHA, is the measure establishing Eurojust, the EU’s prosecutors’ cooperation body. Eurojust’s functions include improving coordination between the relevant authorities of the member states and providing support and assistance with investigations and prosecutions. An amending piece of legislation, Document 77, Council Decision 2009/426/JHA, should also be included in this category. It established “On-Call Coordination”, to ensure Eurojust services are available on a “round the clock” basis, and made a number of other changes in light of seven years of experience.

Eurojust’s caseload has risen seven-fold since 2002 (from 202 cases that year to 1,441 in 2012).109 The UK sought assistance from Eurojust in 644 criminal cases between 2001 and 2011, and cooperated with 1,344 requests made by other member states during this time.110 Mirroring this trend, Eurojust’s Annual Report for 2011 reveals the UK authorities made 71 requests for assistance and received 197 such requests in return.111 This means the UK made the fifth largest number of requests to Eurojust of all EU member states in 2011, whilst receiving the fourth largest number of requests in return. This level of engagement suggests that the UK authorities derive practical benefits from being able to channel requests through Eurojust, and that UK access to this system is worthy of retention. That said, Eurojust suffers from many of the inefficiencies of other EU bodies, in particular when it comes to delivering value for money against a rising budget (see box below). There would also be risks for the UK associated with letting the ECJ and the Commission determine Eurojust’s mandate and data protection responsibilities.

In the aftermath of a block opt-out decision, the UK could either opt back in or work with Eurojust on the basis of an MoU, coupled with supporting domestic legislation. There is mutual interest in ensuring the UK’s continued involvement and cooperation, given the UK’s technical expertise, intelligence and the high number of requests for assistance made to Britain each year.

Given the Commission and other more federalist member states’ ambition to use Eurojust as a stepping-stone towards a European Public Prosecutor, the UK should consider carefully the nature of its continued engagement with Eurojust.

108 Parliamentary Question answer of 20 March 2012

109 Eurojust, Annual Report 2011, June 2012, figure 1 (p. 69), http://eurojust.europa.eu/doclibrary/corporate/Pages/annual-reports.aspx

110 Parliamentary Question answer of 20 March 2012

111 Eurojust, Annual Report 2011, June 2012, figures 7 and 8 (pp. 75-76), http://eurojust.europa.eu/doclibrary/corporate/Pages/annual-reports.aspx

Joint Investigation Teams

The next EU measure in this category is Document 38, Council Framework Decision 2002/465/JHA. This sets out the terms on which two or more member states can create Joint Investigation Teams (JITs) to investigate criminal activity on a cross-border basis. Between 2009 and February 2012, the UK has been involved in 14 JITs, tackling issues such as drug trafficking, illegal immigration, fraud and vehicle crime.112 In 2011, at least 53 JITS were operating across the EU.113 Eurojust states that the “steadily increasing” number of JITs demonstrates that national authorities are becoming more familiar with this instrument, although its report also highlights recurring two stumbling blocks regarding confusion over the admissibility of evidence and the disclosure of information, where differing rules between member states can compromise joint investigations.114 The Home Office states that JITs have proved “a valuable means of enhancing practical cooperation between EU member states”.115

A good example was provided by the JIT which operated between the Metropolitan Police and the Romanian Police between 2007 and 2009. Operation Golf tackled a Romanian organised crime network that was trafficking children from the Roma community. The investigation led to the arrest of 87 persons for trafficking, money laundering, child neglect and perverting the course of justice. 272 victims trafficked by the gangs were recovered.116

Joint Investigation Teams appear to be a net positive for UK law enforcement. It would be possible to seek to opt back into this measure. However, the EU instrument covers sensitive issues including the criminal and civil liability of the officers involved in JITs, as well as the terms on which they are allowed to operate in other countries and the leadership of the teams. Opting back into the measure would cede interpretative authority over such matters to the ECJ and the Commission. An alternative would be to arrange JITs through bilateral or multilateral MoUs with other member states. Supporting UK domestic legislation could set out the legal basis on which foreign officers are able to operate on UK soil, ensuring the UK courts have the final say on its interpretation.

Exchange of information concerning the investigation of genocide, crimes against humanity and war crimes

Document 40, Council Decision 2002/494/JHA requires member states to designate a contact point for the exchange of information concerning the investigation of genocide, crimes against humanity and war crimes. The UK has three such contact points: SOCA, the Metropolitan Police, and the Crown Prosecution Service Special Crime and Counter Terrorism Division. Through this

network UK contact points have attended a number of meetings and presentations in which information regarding genocide, crimes against humanity and war crimes has been shared among contact points. There is no centrally held record for the number of times the contact points have received a request for information.117

It makes sense for member states to identify specialist contact points to exchange information regarding the identity or whereabouts of those responsible for such serious crimes. However, it is essentially an administrative function and could easily be arranged without the need for the UK to opt back into the measure. As the Council Decision notes, the Rome Statute of the International Criminal Court, to which all EU member states are signatories, already requires that every state should exercise its criminal jurisdiction over those responsible for such international crimes.

112 Parliamentary Question answer of 20 February 2012

113 Parliamentary Question answer of 20 February 2012

114 Eurojust, Annual Report 2011, June 2012, pp. 37 -39, http://eurojust.europa.eu/doclibrary/corporate/Pages/annual-reports.aspx

115 Parliamentary Question answer of 20 February 2012

116 European Commission website, Operation Golf, http://ec.europa.eu/anti-trafficking/entity.action?id=5c9c60a9-6b50-478d-808c-6a1b5ff58444

(last updated June 2012)

117 Parliamentary Question answer of 27 March 2012

Peer evaluation of member states’ national arrangements for counter-terrorism

Document 45, Council Decision 2002/996/JHA, is similar to Document 13 (above). It establishes a peer evaluation mechanism for evaluating member states’ national arrangements for counter-terrorism. Evaluation teams are composed of two experts, who cannot be nationals of the member state being evaluated. As with Joint Action 97/827/JHA, their report proceeds up via a working party to the Council, which can address recommendations to member states and invite them to report back on the changes they make as a result of those recommendations.

The UK has been subject to two evaluation processes under this legislation, spanning the periods June 2003 – May 2005 and August 2007 – November 2009.118 The reports which followed contain a series of broad recommendations regarding counter-terrorism across the EU, for example including the need for national crisis management arrangements and for secure communications systems. These reports can be of use to the UK. However, there is no need for legislation to ensure that this kind of peer group evaluation takes place. The UK could participate in these evaluations on a voluntary basis or under a MoU with member states.

Liaison officers

Document 46, Council Decision 2003/170/JHA, is another measure regarding liaison officers across the EU. The measure stipulates that member states should encourage close contact between the liaison officers they send abroad to third country or international organisations. There are no available details of liaison officer numbers in specific locations.119

Document 65, Council Decision 2006/560/JHA, is a short amending measure regarding Council Decision 2003/170/JHA on the use of liaison officers posted abroad by the law enforcement agencies of member states. It contains some minor definitional changes and provisions regarding information exchanges.

This practical cooperation benefits the UK. However, it does not require supranational legislation. The UK maintains close law enforcement links with non-EU countries without the need for supranational legislation or jurisdiction. For example, SOCA has 140 liaison officers based around the world. SOCA works in particularly close collaboration with the authorities in the USA, Canada, Australia and New Zealand, who together with the UK constitute the Strategic Alliance Group to combat organised crime.120 They cooperate under a MoU. This is not a legally binding document, but sets out an agreed framework for collaboration and information sharing.121

According to SOCA:

“SOCA, and all members participating in the Strategic Alliance Group (SAG) are governed by a charter, which defines the purpose of the group, and the principles of collaboration and activity between the partners. This charter is signed by all members on the basis that it is law enforcement sensitive and can be amended, superseded, or terminated by the mutual written consent of the partners.

Each agency is represented by its most senior officer “referred to as SAG Principals”, with SOCA represented by the Director General. The “principals” meet annually to discuss matters of mutual, critical and strategic importance. With common threats and ever greater pressure on resources, sharing intelligence and committing shared resources to tackling these threats is the key focus of the group. The SAG has three work streams: Cyber Crime; Proceeds of Crime; and, Intelligence (The Criminal Intelligence Advisory Group).”122

118 Parliamentary Question answer of 19 March 2012

119 Parliamentary Question answer of 27 March 2012

120 SOCA, SOCA working in partnership worldwide, http://www.soca.gov.uk/about-soca/working-in-partnership/international-partnerships/

121 Email from SOCA of 16 October 2012

122 Email from SOCA of 12 October 2012

Cooperation between national authorities on vehicle crime

Document 56, Council Decision 2004/919/EC, is designed to maximise cooperation between national authorities in the fight against vehicle crime. Member states are required to take all necessary steps to prevent the abuse and theft of vehicle registration documents and to designate national contact points for exchanging experience as well as general and technical information. Under Article 11 of the Decision, those contact points are required to hold a meeting at least once a year to bolster cooperation. With these aims in mind, a representative of the Association of Chief Police Officers’ Vehicle Crime Intelligence Service (AVCIS) attended twice-yearly meetings with their European counterparts each year between 2007 and 2011, and AVCIS participated in four joint operations.123

Close cooperation to tackle vehicle crime is in the UK national interest. However, this Decision is another example of the EU legislating when a collaborative approach to meeting and information-sharing could serve the same purpose. Following a UK opt-out decision, the UK could commit to continue the same level of practical cooperation without the need for a supranational legal basis.

Mutual recognition of financial penalties imposed in criminal cases

Document 59, Council Framework Decision 2005/214/JHA, is designed to promote the mutual recognition of financial penalties imposed by the courts or administrative authorities of EU member states in criminal cases. These financial penalties can include fines following conviction for an offence, payments for victim support or compensation, or recovery of the administrative costs connected to the hearing, such as court fees.

To seek the enforcement of an outstanding penalty, the authorities of a member state need to submit a decision, together with the appropriate paperwork, to the authorities of a member state in which the natural or legal person against whom a decision has been passed has property or income, is normally resident, or (in the case of a company) has its registered seat. Upon receipt of a properly formatted request for enforcement, the authorities in the executing member state are required to enforce the financial penalty without any further formalities being required, subject to limited grounds for non-recognition set out in Article 7 of the Framework Decision.

This Framework Decision was implemented in England, Wales and Northern Ireland in 2009. The figures reveal a slow increase in usage by the UK authorities, which submitted just one enforcement request in 2010, but submitted 19 requests in the first quarter of 2012.124 Correspondingly, the UK received 68 requests for enforcement from other EU member states in 2010, of which 25 have been paid in full, 25 are ongoing cases and one has been remitted. In 2011, 175 such requests were sent to the UK, of which 44 have so far been paid in full and 61 remain ongoing cases. In the first quarter of 2012, 59 requests were received.125 This EU measure appears to be gathering momentum, and the UK receives a disproportionate amount of requests compared to those it issues.

As this measure involves the confiscation of money arising from criminal convictions, it arguably requires a formal framework. However, this could be achieved through an MoU and supporting domestic legislation, which would avoid the ECJ ruling on sensitive issues such as the grounds for non-recognition of penalties.

123 Parliamentary Question answer of 27 March 2012

124 Parliamentary Question answer of 27 March 2012

125 Parliamentary Question answer of 27 March 2012

Exchange of information about new psychoactive drugs

Document 62, Council Decision 2005/387/JHA, establishes a mechanism for the rapid exchange of information about new psychoactive drugs (medications which affect people psychologically). Member states are obliged to ensure that they provide information to Europol and the European Monitoring Centre on Drugs and Drug Addiction (EMCDDA) on the manufacture, traffic and use of new psychoactive substances, so that this information can be transmitted to the authorities across the EU. The European Council may decide to impose control measures, in which case member states shall take steps to impose those measures within one year.

Between 2007 and 2011, the Reitox network’s Focal Point for the United Kingdom, which is based in the Department of Health, formally notified 37 New Psychoactive Substances to the EMCDDA. The EMCDDA’s annual implementation report lists both the New Psychoactive Substances notified that year and the countries identifying them.126

This kind of anti-drugs collaboration is of value to the UK. However, an alerts mechanism can easily be established independently of supranational legislation, if necessary on the basis of an MoU.

European Police College

Document 67, Council Decision 2005/681/JHA, establishes the European Police College (CEPOL). CEPOL is designed to bring together the national training institutes for senior police officers in the member states. Its functions include training sessions based on commons standards, disseminating best practice and research and facilitating relevant exchanges and secondments. This work can be of value to the UK authorities – reflected in the fact that 562 police officers from England and Wales have received training at CEPOL since 2006.127

However, following a UK opt-out, the UK’s ongoing interaction with CEPOL could be arranged on a voluntary basis or under an MoU.

Prisoner transfers

Document 85, Council Framework Decision 2008/909/JHA, relates to prisoner transfers. It allows member states to send prisoners convicted of a variety of serious crimes (including murder, rape and organised crime) home to serve their sentences. The recipient member state can object, by arguing that enforcement of the sentence there would not serve the purpose of facilitating the prisoner’s rehabilitation. Prisoners do not have the right to object if they are being returned to their own countries or if they are being sent to the country to which they would be deported at the end of their sentence.

The government believes that, wherever possible, foreign national prisoners should serve their sentences in their own country – saving money for the UK and freeing up spaces in the UK prison estate.128 The number of prisoners in England and Wales who are nationals of other EU member states more than doubled between 2002 and 2011.129 They now represent around four percent of the total prison population.130 This EU measure is important for the UK. It came into effect in this country on 5 December 2011. However, no prisoners were transferred to or from the UK during its first six months of operation.131 Equally, only nine EU member states have so far implemented the decision. The government anticipates a “steady increase” in the numbers involved.132

126 Parliamentary Question answer of 17 May 2012

127 Parliamentary Question answer of 28 June 2012

128 Statement by Prisons Minister Crispin Blunt MP, 31 July 2012,

http://www.justice.gov.uk/news/press-releases/moj/compulsory-prisoner-transfer-agreement-with-albania

129 Rising from 1,765 to 3,686. Parliamentary Question answer of 7 March 2012 to Martin Horwood. Hansard 7 March 2012, col. 752W,

http://www.publications.parliament.uk/pa/cm201212/cmhansrd/cm120307/text/120307w0001.htm#12030774000038

130 Daily Telegraph, 10 March 2012, http://www.telegraph.co.uk/news/uknews/crime/9134365/European-prisoner-population-doubles-over-decade.html

131 Parliamentary Question answer of 14 June 2012

132 Parliamentary Question answer of 7 March 2012 to Martin Horwood. Hansard, 7 March 2012, col. 752W,

http://www.publications.parliament.uk/pa/cm201212/cmhansrd/cm120307/text/120307w0002.htm

Following a UK opt-out, the UK may wish to opt back in. However, that would extend the powers of the ECJ and the Commission to interpret the application of the measure, including on sensitive issues such as non-recognition of judgments (Article 9), amnesty, pardon and review

(Article 19) and costs (Article 24). Alternatively, the UK could rely on or develop bilateral or multilateral prisoner return treaties with EU member states along the lines of the agreements that it already holds with a large number of other countries (without giving the ECJ the final authoritative word on their interpretation in the UK).133 There is already a Council of Europe Convention on the Transfer of Sentenced Persons 1983, with sixty-four state parties.

European Judicial Network

Document 89, Council Decision 2008/976/JHA, is concerned with setting up a European Judicial Network (EJN), to establish a network of judicial contacts and foster best practice. Member states nominate contact points to facilitate cooperation between member states, and to organise training sessions.

Contact Network Against Corruption

Similarly, Document 135, Council Decision 2008/852/JHA, established a contact-point network against corruption, in order to improve cooperation between agencies across the EU. Member states are required to designate at least one organisation to participate in the network, which also includes the Commission, Europol and Eurojust. Such a network can benefit the UK. However, setting them up and operating them is an administrative task that does not require supranational legislation. The UK could seek to continue to cooperate with the two networks on the basis of an MoU, or some other arrangements based on the Frontex model of cooperation.

Access to criminal records across the EU

Document 93, Council Framework Decision 2009/315/JHA, regulates access to criminal records across the EU. In the UK, all foreign criminals are checked against the police national computer to see whether they have previous offences in the United Kingdom. The police are also able, under EU council decision 2005/876/JHA, to make a request for the previous convictions of the arrested individual from their country of nationality if the individual is an EU national.

Although many member states do provide such information on request, it was previously not mandatory to do so. This framework decision made it mandatory for EU member states to provide this information, with effect from April 2012.134

The framework decision also allows requests for information from member states’ criminal records for purposes other than criminal proceedings. Home Office statistics reveal that in the first two months after the decision came into effect, 66 such requests were received by the UK. These included checks on government employment, firearms licenses and also individuals seeking access to their own criminal records.135

Document 94, Council Framework Decision 2009/316/JHA, is related to Document 93. It establishes the European Criminal Records Information System (ECRIS), the software allowing member states to exchange data from their criminal records.

These measures benefit the UK. Whilst opting back in would be an option, an alternative would be to agree to cooperate on the basis of an MoU supported by domestic implementing legislation. The measure does not require a supranational legal basis, subject to the ECJ’s jurisdiction, to operate effectively.

133 The full list of Prisoner Transfer Agreements can be found at

http://www.fco.gov.uk/en/publications-and-documents/treaties/treaty-texts/prisoner-transfer-agreements

134 Parliamentary Question answer of 20 December 2011 to Lord Patel of Blackburn. House of Lords Hansard, 20 December 2011, col. WA348,

http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/111220w0001.htm

135 Parliamentary Question answer of 21 June 2012

Europol

Document 95, Council Decision 2009/371/JHA, establishes the European police agency (Europol). Europol has 700 staff and supported 12,000 cross-border law enforcement investigations in 2010.136 Documents 19 and 21, EU Council Act 1999/C 26/07 and the amending Decision 1999/C 364/01, set out the Europol staff regulations and pay scales.

Document 104, Council Decision 2009/934/JHA, sets out the rules governing Europol’s interaction with other EU agencies and with the authorities of non-EU countries, including the exchange of personal data and classified information. It establishes safeguards regarding both when personal data can be transferred and how it is safeguarded, together with rules regarding its correction and deletion. The UK’s Europol National Unit, based in the Serious Organised Crime Agency, does not know how many UK nationals have their personal data held by Europol. Personal data is submitted to Europol by the law enforcement agencies of the 27 EU member states and eight third party countries. The UK’s Europol unit does not have access to the information submitted by other parties. It only has access to personal data on UK nationals that it has placed on the system itself. Officials cannot provide a figure for the number of UK nationals whose personal data has been inputted to Europol by the UK and Europol data systems are not configured to provide this data by nationality.137

Document 105, Council Decision 2009/935/JHA, is an ancillary measure regarding Europol. It legislates regarding the non-EU countries and organisations with which Europol can

conclude agreements.

Document 106, Council Decision 2009/936/JHA is also an ancillary measure governing Europol’s operations. It sets out the rules for the use and transfer of the data in Europol’s case files. This can include a range of sensitive data. Europol databases are governed by handling codes.

Document 108, Council Decision 2009/968/JHA, sets the rules on the confidentiality of Europol information. It stipulates the various classification levels and security packages.138

Although data is unavailable regarding how many requests to initiate conduct or coordinate investigations the UK authorities receive from Europol each year139, Europol has been involved in a series of major criminal investigations involving the UK. For example, Europol analysts

played a crucial role in supporting and coordinating Operation Rescue, which broke an international paedophile ring in 2011 and led to 184 arrests being made, including 121 in the UK.140 Other recent examples include Operation Forecourt, which targeted tobacco smuggling into the UK via Luxembourg, and Operation Shovel, where Europol assisted Ireland, the UK, Spain and Belgium to detect the criminal proceeds of an Irish-based organised crime group involved in drugs and weapons trafficking.141 The Europol director points to the value of his agency’s “unique” set of intelligence databases on organised crime and terrorism.142

Despite questions about waste and cost-efficiency (see box, above), Europol evidently benefits UK law enforcement. Following a UK opt-out, there would be a range of options for the UK to consider regarding how best to continue cooperating with Europol. In addition to the possibility of opting back in, the UK could consider moving towards a model of cooperation comparable to the one the UK has with the EU borders agency Frontex, characterised by active participation

136 Europol, Europol Review, September 2011, p. 8,

Click to access en_europolreview.pdf

137 Parliamentary Question answer of 3 July 2012

138 Parliamentary Question answer of 9 July 2012

139 Parliamentary Question answer of 26 June 2012

140 Europol, 16 March 2011, https://www.europol.europa.eu/content/press/more-200-children-identified-and-rescued-worldwide-police-operation-465

141 Europol, Europol Review, September 2011, p. 53, https://www.europol.europa.eu/sites/default/files/publications/en_europolreview.pdf and Europol,

Operational Successes, https://www.europol.europa.eu/content/page/operational-successes-127

142 Speech by Europol Director Rob Wainwright, The future of EU internal security after 2014: will the UK remain a major player?, May 2012,

http://www.ucl.ac.uk/european-institute/highlights/europol

in operations without being a signatory to the EU legislation itself. Such cooperation would be based on an MoU or alternative basis, without giving the Commission or the ECJ supranational jurisdiction over such sensitive areas of national security, as well as over data protection of UK nationals.

It should be noted that, as with Eurojust, the Commission has indicated its intention to bring forward new legislation regarding Europol, to reflect its new legal basis under the consolidated Lisbon Treaty.143

Schengen police and judicial cooperation and shared information databases

Document 110, the Schengen agreement of 1985, abolished the internal borders of Germany, France and the Benelux countries, to further the principle of free movement. Key features include: the removal of checks on persons at the internal borders; harmonisation of the conditions of entry and of the rules on visas for short stays; enhanced police cooperation (including rights of cross-border surveillance and hot pursuit); stronger judicial cooperation through a faster extradition system and transfer of enforcement of criminal judgments; and the establishment and development of the Schengen Information System (SIS).144

Only the United Kingdom and Ireland have a full opt-out from Schengen. All other EU member states are under a treaty obligation to participate fully in Schengen, when they are deemed ready to do so, and Document 111 consists of the various accession protocols of these other EU member states. Although the UK and Ireland have chosen to remain outside the Schengen free movement area, they take part in some parts of the Schengen acquis.

Documents 114-120 and 122 are ancillary measures arising from the Schengen acquis. They apply to the UK since its 2000 decision to join those elements of Schengen regarding police and judicial cooperation.145 Document 114, (SCH/Com-ex (98) 26 def), establishes a Standing Committee on the implementation of the Schengen Agreement. Document 115 (SCH/Com-ex (98) 52), creates a Handbook on cross-border police cooperation. Document 116 (SCH/Com-ex (99) 6), approved algorithms and technology for a future cross-border digital police radio system. Document 117 (SCH/Com-ex (99) 7 rev. 2), provides for the reciprocal secondment of liaison officers to assist at external borders, setting out the terms of their work in painstaking detail (down to the need for host states to organise sufficient health insurance cover). Document 118 (SCH/Com-ex (99) 8 rev.2), sets out some basic principles with regard to the payment of informers, for example, the principle that they should be paid on the basis of “the quantity of information and the results it produces”, or that the “trustworthiness and motivation” of the informer should be taken into account. These principles are adopted “without prejudice to national provisions”.

Document 119, SCH/Com-ex (99) 11 rev.2, is another Schengen-related measure. It is designed to ensure that those who commit road traffic offences whilst travelling in an EU member state cannot escape the consequences of their actions when they return to their respective countries of origin. When the authorities of the member state where an offence was committed find themselves unable to enforce a fine against an individual from another member state, in defined circumstances they can request that the authorities of the individual’s home state enforce the decision. The Ministry of Justice was unable to state what the effect of British participation in this measure has been on the prosecution of road traffic offences in the UK. They stated that this measure has been partly superseded by Document 59 (Council Framework Decision 2005/214/JHA).146

143 EU Commission, Commission Work Programme 2012, November 2011, p. 13, http://ec.europa.eu/atwork/pdf/cwp2012_annex_en.pdf

144 EU, Europa website, http://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l33020_

en.htm

145 Parliamentary Question answer of 12 July 2012

146 Parliamentary Question answer of 10 July 2012

Document 120, Council Decision 2000/586/JHA, is an amending measure updating some terminology after the integration of the Schengen acquis into the framework of the European Union.147

Document 121, Council Decision 2003/725/JHA, is an amending instrument to the Schengen Agreement. It allows the authorities in member states to continue a surveillance programme on a cross-border basis when they are investigating an extraditable criminal offence. They can only do so where the other member state has authorised such cross-border surveillance. Data from SOCA show that the UK has made significant use of these arrangements. Since 2008, the UK has made 154 such requests and received five requests from other member states.148

Document 122, Council Decision 2004/849/EC and Document 132, Council Decision 2008/149/JHA approve aspects of Switzerland’s association with the Schengen acquis.

Document 123, Council Decision 2005/211/JHA, concerns the introduction of new functions for the first version of the Schengen Information System (SIS I). SIS I began operating in March 1995 to provide a safeguard against the removal of internal borders between France, Germany and the Benelux countries. Their police, intelligence, immigration and customs services are able to “alert” each other to people refused admission (immigration offenders or security risks), people wanted for arrest, extradition or to testify in court, fugitives, persons to be placed under surveillance and stolen objects (vehicles, works of art, identity documents etc.).149 Twenty-two EU Member States, plus Iceland and Norway (Schengen associate countries), are connected to the current version of the system.150

Document 124 (Council Decision 2006/228/JHA), Document 125 (Council Decision 2006/229/JHA) and Document 126 (2006/631/JHA) are all further technical measures making changes to the SIS I database. The United Kingdom has never connected to the system. The current government’s position is that the UK has not connected to this database and “has no plans to do so.”151

Document 127, Commission Decision 2007/171/EC, sets out the network requirements for the establishment of the second-generation Schengen Information System (SIS II). SIS II is being developed to replace SIS I, providing enhanced features such as the inclusion of biometric data.152 It is currently undergoing extensive testing across EU countries and associated countries participating in the Schengen area. The UK participates in SIS II (see above).

Document 128, Council Decision 2007/533/JHA, is the legislative basis for the creation of the SIS II database.

Document 129, Council Decision 2008/173/EC, provides for a series of comprehensive tests of the SIS II system, to be supervised by the EU Commission. However, the tests are only for EU members already participating in the current SIS I system, who will be migrating to the new system, and the UK does not therefore need to participate.153

Document 130, Council Decision 2008/334/JHA, sets out the SIRENE manual and other

implementing measures for use of the second-generation Schengen Information System (SIS II). The

SIRENE manual sets out in detail the rules and procedures governing the exchange of information under the system.

147 Parliamentary Question answer of 10 July 2012

148 Parliamentary Question answer of 11 July 2012

149 Ben Hayes, Statewatch, From the Schengen Information System to SIS II and the Visa Information System (VIS): the proposals explained, February 2004,

p. 3, http://www.statewatch.org/news/2005/may/analysis-sisII.pdf

150 House of Commons European Scrutiny Committee, documents considered on 14 June 2012, paragraph 13.2. Available at:

http://www.publications.parliament.uk/pa/cm201213/cmselect/cmeuleg/86iv/86iv17.htm

151 Parliamentary Question answer of 16 July 2012

152 EU, Europa website, http://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14544_

en.htm

153 Parliamentary Question answer of 16 July 2012

Document 131, Council Decision 2008/328/EC, is a minor amending regulation regarding how the costs of the SIS I system are shared between the contracting parties. Switzerland connected to the system in August 2008154, and consequential adjustments therefore needed to be made to the legislation.

Document 133, Council Decision 2009/724/JHA, is a measure adjusting the date for the planned migration from the SIS I alerts database to the new SIS II system. The European Commission now plan

to have the central SIS II system ready for operation by the end of the first quarter of 2013.155

The Home Office has not provided any detailed evaluation of the UK’s participation in Schengen. It recently stated:

“The UK partially participates in the Schengen acquis, with the primary purpose of connecting in due course, to the second generation of the Schengen Information System (SIS II). The UK also participates in Schengen activities where drug and arms trafficking are involved. There are no plans for the UK to join those elements of Schengen pertaining to border controls.”156

In June 2012, Home Office minister James Brokenshire told the House of Commons European Scrutiny Committee:

“Participation in SIS II will deliver a number of key strategic benefits on behalf of the Home Office, police forces and the wider criminal justice sector. These include reduced crime (particularly through the ability to screen for wanted criminals via border controls), greater identity assurance at the border and improved police cooperation.”157

Since then, the Home Secretary has also indicated that the UK should review the operation of the EU rules governing free movement given their impact on crime, policing, border controls, security and benefits to tourism. It is unlikely the UK would opt into Schengen measures, in the immediate aftermath of the block opt out, given its historic reluctance to remove national border controls. However, cooperation on Schengen matters of national interest, including SIS II, could and should remain part of a wider future dialogue on, and renegotiation of, UK cooperation under JHA policy. Practical cooperation could be pursued on an ad hoc basis and through MoUs and accompanying domestic legislation, without abolishing UK border controls or signing up to supranational legislation and supervision by the Commission and the ECJ. The Frontex model of cooperation offers a basis focused on enhanced practical cooperation rather than ceding democratic authority.

European Arrest Warrant

The final instrument in Category 1 is Document 41, Council Framework Decision 2002/584/JHA. This established the European Arrest Warrant (EAW), which entered into effect on 1 January 2004. The EAW created a regime for fast-track extradition replacing previous Council of Europe Conventions. It was part of the push for enhanced law enforcement cooperation in the aftermath of 9/11.

The CER concedes that the EAW “represents the greatest single encroachment on EU countries’ sovereignty in criminal justice”. Its recent report notes that: “Interior ministers only signed up

154 Swiss government, http://www.ejpd.admin.ch/content/ejpd/en/home/themen/sicherheit/ref_polizeizusammenarbeit/ref_schengen/ref_sis.html

155 Parliamentary Question answer of 12 July 2012

156 Parliamentary Question answer of 9 July 2012

157 European Scrutiny Committee report on documents considered on 14 June 2012, Para 13.10,

http://www.publications.parliament.uk/pa/cm201213/cmselect/cmeuleg/86iv/86iv17.htm

to it while under immense political pressure to advance EU internal security cooperation after the terrorist attacks of September 11 2001”.158

Whilst extradition cooperation is important to the UK and EU, serious and persistent concerns have been raised over the operation of the EAW in practice. It is worth noting that rising volume of EAW cases. The number of EAWs issued to the UK tripled from 1,865 in 2004 to 5,832 by 2011.159 The volume of EAW extradition dwarfs that with other non-EU partner states. The UK surrendered 4,029 people under EAWs between 2004 and 2012.160 By contrast, the UK extradited 99 people to the United States between 2004 and June 2012.161

Furthermore, the system seems unbalanced. Britain receives a disproportionate number of EAWs: in 2010, a third of all the EAWs issued across the EU were sent to the UK.162 This trend is reflected in the fact that in 2011, the UK surrendered eleven people under an EAW for every one received in return.163 By contrast, since 2004, the UK has surrendered two people to the United States for every one received in return.164

There are major concerns that in the drive to expedite extradition within the EU, the new regime has dispensed with key safeguards protecting the innocent. A series of individual cases have drawn attention to the human cost of the EAW legislation for British citizens. One major underlying flaw in the arrangements is that fast-track EAW extradition is based on the false assumption that standards of justice are equal across Europe. This is demonstrably not the case.165 This has been highlighted in a string of recent cases. Andrew Symeou, a young British man was extradited to Greece in 2009 to face charges in connection with a nightclub death in Zante two years earlier. The evidence against Andrew was tainted from the outset, with complaints of serious police intimidation of witnesses. He was extradited long before the Greek court was ready to try him, and had to spend ten months in appalling prison conditions before being granted bail in Greece. When Andrew’s case eventually came to court, in June

2011, the prosecutor recommended that he be cleared.166 Andrew suffered a two year ordeal before being cleared. His case illustrates the lack of basic safeguards to prevent innocent people from being swept up in the broad net of the EAW and the lack of even the most basic checks to prevent miscarriages of justice.

In another case, Deborah Dark was arrested over a twenty-year old drug offence.167 Ms Dark had originally been arrested in France in 1989 on drug-related offences. The French court found her not guilty of all charges and she was released. However, the French court of appeal overturned the original verdict without her knowledge in 1990, sentencing her to six years in prison. In 2005, the French authorities issued an EAW for her to be extradited to serve her sentence without her being notified. She was arrested at gunpoint, whilst on holiday in Turkey in 2007, strip-searched and handcuffed by police and subjected to physical abuse.168 Her ordeal finally ended after the French authorities informed Fair Trials International that they no longer sought her extradition because of the statute of limitations.169

158 H. Brady, Cameron’s European own goal: leaving EU police and justice cooperation, Centre for European Reform, October 2012, p. 4,

http://www.cer.org.uk/publications/archive/policy-brief/2012/camerons-european-own-goal-leaving-eu-police-and-justice-co-o

159 Parliamentary Question answer of 20 June 2012 and Parliamentary Question answer of 13 May 2011 to Chris Heaton-Harris MP,

http://services.parliament.uk/hansard/Commons/bydate/20110517/writtenanswers/part013.html

160 Figures from Joint Committee on Human Rights, Fifteenth Report of 2010-12, The Human Rights Implications of UK Extradition Policy, June 2011,

http:// http://www.publications.parliament.uk/pa/jt201012/jtselect/jtrights/156/15602.htm and from Parliamentary Questions answers of 1 December 2011

and 20 June 2012

161 Parliamentary Questions answers of 5 December 2011 and 19 June 2012.

162 4,578/13,891 – see EU Council, 2010 information on operation of EAW, http://register.consilium.europa.eu/pdf/en/11/st09/st09120-re02.en11.pdf

163 922 to 86. See Parliamentary Question answers of 20 June 2012 .

164 99 to 44. See Parliamentary Questions answers of 5 December 2011 and 19 June 2012.

This ratio rises to seven to one when comparing the number of UK nationals that the UK sent to the US (35) to the number of US nationals the US sent to the UK during this period (5). Data based on flows of nationals between member states under the EAW is not available.

165 See paragraphs 25 and 26 above.

166 Details from Fair Trials International, http://www.fairtrials.net/cases/article/andrew_symeou

167 Details from Fair Trials International, http://www.fairtrials.net/cases/article/deborah_dark

168 Guardian, 25 May 2010, http://www.guardian.co.uk/world/2010/may/25/france-drops-deborah-dark-arrest-warrant

169 Guardian, 25 May 2010, http://www.guardian.co.uk/world/2010/may/25/france-drops-deborah-dark-arrest-warrant

There have been other cases where foreign police authorities have failed to properly check their evidence. Edmond Arapi faced extradition to Italy to serve a 16 year sentence for a crime which was committed while he was at work in the UK. He was tried in absentia and convicted of killing a man in Italy in October 2004. He had no idea that he was wanted for a crime or that the trial even took place. Mr Arapi could not have committed the crime, because he had not left the UK at all between 2000 and 2006. He was arrested in June 2009 at Gatwick Airport on an EAW, while returning from a family holiday.170 It was only after a high profile campaign involving media, political and legal pressure, that Italian authorities finally admitted that the wanted man was actually an entirely different person.

There have also been other instances where prosecutors have launched “fishing expeditions” hoping to gather evidence to pursue their investigations, rather than being trial ready to launch a prosecution – which is the only purpose for which extradition under an EAW is allowed. Michael Turner, a British businessman from Dorset, was extradited to Hungary under an EAW in 2009 following the failure of a business venture in Budapest. No charges were laid at the time of his extradition and he was given no indication of the evidence against him. Mr Turner was held in a high security prison for four months, during which time he was interviewed only once by police, before being released and returned to the UK pending trial.171 The trial is still ongoing as of the autumn of 2012.

In 2012, 68-year old retired judge Colin Dines was arrested with three colleagues, including his son, on the basis of an EAW issued by the Italian authorities. Italian magistrates suspect they were involved with a £344 million money laundering operation, allegedly masterminded by the Mafia. Mr Dines explained:

“We were dragged out of bed at 5am, yet we’ve never been questioned by the prosecutors in the case. We have never been charged or shown details of the case against us. As a result we have not been able to put up any defence.” 172

No effort was made to interview Mr Dines in the UK. No charges have been formally laid and no evidence presented to him to justify the EAW. He has suffered a stroke and has been advised he has minimal prospects of receiving bail in Italy because he is a foreign national.

The European Arrest Warrant lacks the most basic safeguards that would allow judicial scrutiny to protect British citizens from such manifest miscarriages of justice. Even the pro-integration CER acknowledges that “erroneous investigations made by authorities in other European countries have led to the UK police arresting and extraditing innocent citizens abroad on a handful of occasions”, and that it can be an “unfair deal to Britain”. 173

Other countries have acted to prevent such unfairness from arising.174 German courts have held that they can examine the proportionality of an EAW request and refuse to surrender a person on the grounds that to do so would be disproportionate. In General Public Prosecution Service v C, the court held that it could consider the proportionality of extradition by virtue of the fact that proportionality forms part of the German constitutional tradition, and also because “the principle of proportionality of criminal offences and penalties…is a general principle of the Union’s law”.175 The Netherlands has also imposed restrictions. The Dutch authorities will only extradite a person when the offence is also a crime under domestic law, and requires a guarantee

170 Fair Trials International, http://www.fairtrials.net/cases/edmond-arapi/

171 Fair Trials International, http://www.fairtrials.net/cases/article/michael_turner

172 Sunday Telegraph, 1 July 2012, http://www.telegraph.co.uk/news/uknews/crime/9366573/Retired-judge-among-Britons-facing-extradition-to-Italy-

on-Mafia-money-laundering-charges.html

173 H. Brady, Cameron’s European own goal: leaving EU police and justice cooperation, Centre for European Reform, October 2012, p. 11,

http://www.cer.org.uk/publications/archive/policy-brief/2012/camerons-european-own-goal-leaving-eu-police-and-justice-co-o

174 Fair Trials International, The European Arrest Warrant Seven Years On – the Case for Reform (May 2011), pp. 13-14,

http://www.fairtrials.net/publications/policy-and-campaigns/the-european-arrest-warrant-seven-years-on-the-case-for-reform/

175 Higher Regional Court of Stuttgart, 25 February 2010, NJW 2010, 1617-1619

that a defendant will be allowed to serve their sentence in the Netherlands.176 The French constitution also makes it much harder to extradite French nationals to face trial abroad.177

In addition to concerns over the lack of protections under the EAW, there is also an increasing concern that the rising number of UK requests is putting undue strain on police resources,

particularly in trivial cases.

According to the European Parliament, each EAW costs £20,170 to process, meaning the cost to

Britain of processing the EAWs it received was at least £27 million in 2010. That figure will be

even higher when the cost of processing warrants which did not lead to an arrest is taken

into account.178

Whilst UK law enforcement authorities would be understandably concerned about the UK opting out of the EAW regime wholesale and permanently, few have advocated that course of action. Equally, the police have expressed their frustration with the current scatter-gun approach under the EAW. In June 2010, Commander Allan Gibson of the Metropolitan Police stated in a letter to the Home Office that:

“The EU has found that use of the European Arrest Warrant has been complicated by requests for fugitives suspected of low level offences. Police and Crown Prosecution Service/HM Court Service resources are stretched in dealing with the amount of EAWs we receive where no proportionality filter is considered.”179

In the year following Commander Gibson’s comments, the number of EAWs received by the UK rose by 47%.180 So, whilst the UK police want to continue to avail themselves of expedited extradition arrangements within the EU, they have also highlighted the flaws and accept the case for reform.

A common argument made in defence of the EAW relates to UK cases where British nationals have been returned under EAWs. The CER report states:

“British officers often compare the speedy extradition of Hussein Osman from Italy in 2005 under a European arrest warrant, with the situation that prevailed in the 1990s when France and Germany would not extradite their own nationals to other countries. (Osman was later convicted for his part in the terrorist bombing attacks on London in July 2005.)”181

A similar argument is made in relation to the return of Jeremy Forrest from France for the abduction of Megan Stammers. In reality, cooperation in such serious cases results as much from strong operational and political contacts as it does the legal regime. Is it seriously suggested that the Italian authorities would not have sought to cooperate effectively with the UK after the 7/7 and 21/7 terrorist attacks? Equally, the reliance on the EAW to return UK nationals suspected or convicted of criminal offences highlights wider flaws in EU law. The CER argument confuses extradition of nationals to face trial abroad with the return nationals of a requesting state. The latter ought to be dealt with under a fast-track procedure for deportation, because there are fewer legitimate concerns and objections to returning citizens to their home countries than

176 Sunday Telegraph, 14 October 2012,

http://www.telegraph.co.uk/news/uknews/law-and-order/9606795/How-Britain-pays-27m-a-year-to-return-EUs-wheelbarrow-thieves.html

177 French Constitution of 4 October 1958, available at: http://www.assemblee-nationale.fr/english/8ab.asp. Also reported in the Sunday Telegraph,

14 October 2012, http://www.telegraph.co.uk/comment/telegraph-view/9606170/The-EU-Arrest-Warrant-serves-Britain-badly.html

178 Sunday Telegraph, 14 October 2012, http://www.telegraph.co.uk/comment/telegraph-view/9606170/The-EU-Arrest-Warrant-serves-Britain-badly.html

179 Letter from Commander Gibson to Kenny Bowie of the Judicial Cooperation Unit at the Home Office, 16 June 2010 – obtained from the House of

Commons European Scrutiny Committee on request

180 From 4,100 in 2009/10 to 6,032 in 2010/11. Source for the 2009/10 figure: Parliamentary Joint Committee on Human Rights, Fifteenth Report of

session 2010/12, The Human Rights Implications of UK Extradition Policy, p. 40. Source for the 2010/11 figure: Parliamentary Question written answer

of 1 December 2011.

181 H. Brady, Cameron’s European own goal: leaving EU police and justice cooperation, Centre for European Reform, October 2012, p. 5,

http://www.cer.org.uk/publications/archive/policy-brief/2012/camerons-european-own-goal-leaving-eu-police-and-justice-co-o

surrendering them abroad for trial. The irony is that the narrowing of grounds to expel foreign nationals back to their home countries (in the EU) has been pursued as a result of further EU integration and the judicial legislation of the ECJ (see the box, above, entitled “Myths and Facts about the UK opt-out”). The Home Secretary recently announced a review of the EU rules governing free movement, and member states’ ability to deport and expel individuals back to their home countries would be an important area to include in any such review.

In sum, the fast-track extradition under the EAW pursues the important aim of enhanced EU cooperation in law enforcement. However, the pendulum after 9/11 and 7/7 has swung too far. It needs modest readjustment to ensure fair safeguards to protect the innocent. The EAW can be revised so that it works fairly as well as effectively.

The Parliamentary Joint Committee on Human Rights has proposed a small number of reforms to ensure the EAW operates fairly in the UK.182 First, stronger preliminary evidence that a crime has been committed should be required before extradition is authorised. Second, the UK case law on double jeopardy should be codified, so that extradition under an EAW is barred when the Crown Prosecution Service has decided not to prosecute for the same facts. Third, there should be longer periods to allow UK courts to clear up cases of mistaken identity. Fourth, there should be a proportionality principle to ensure warrants are not issued for minor offences. Fifth, there should be tighter checks to prevent warrants being issued for investigation rather than prosecution.

A further option for consideration, as part of a re-negotiation of the EAW, would be to distinguish between the return of nationals to their home countries – which could continue under the current regime – from other requests. That would address cases like Osman Hussein and Jeremy Forrest. Some of these proposed changes would require amendment to the EAW legislation itself. Fair Trials International note that a number of other member states are concerned about the operation of the EAW and would consider reform, including France, Germany, Poland, the Netherlands, Romania, Cyprus and Slovenia.

In its October 2012 report, the CER argues for the EAW legislation to be reformed without the UK exercising its opt-out.183 However, the UK will be in a much stronger position to press for reform of the EAW if it makes this a condition of opting back into this legislation. Given the disproportionate amount of EAWs the UK receives and executes – along with the willingness of

other member states to look at the case for reform – it is reasonable and realistic to believe the UK will be in a position to press for modest reform, particularly if it is clear that the UK wishes

to remain part of the regime.

Some have suggested that EU member states may reject UK overtures out of hand. Yet, the proposed reforms would be modest and can be reasonably and respectfully presented. If the Commission or member states were to seek to snub or isolate Britain, not only would they lose out, but it would highlight the fears of those who believe the EU is heading towards a federal justice system and ultimately will tell Britain to “like it or lump it”. It is far from clear that EU governments will take such an inflexible approach. However, if it does materialise, it would be better to know sooner rather than later that this is the stark choice Britain faces.

Whilst there would be a compelling case for the UK to opt back into a reformed EAW, as the government negotiates with the EU, it should also seek to ensure that the UK Supreme Court rather than the ECJ remains the final arbiter of its application to cases involving extradition from Britain. Extradition involves sensitive issues concerning UK nationals and the operation of British justice. These ought to be determined by the UK courts.

182 Joint Committee on Human Rights, Fifteenth Report of 2010-12, The Human Rights Implications of UK Extradition Policy, June 2011,

http://www.publications.parliament.uk/pa/jt201012/jtselect/jtrights/156/15602.htm

183 H. Brady, Cameron’s European own goal: leaving EU police and justice cooperation, Centre for European Reform, October 2012, p. 11,

http://www.cer.org.uk/publications/archive/policy-brief/2012/camerons-european-own-goal-leaving-eu-police-and-justice-co-o

If the UK were to opt out of the EAW for an interim period whilst necessary reforms were being negotiated, it could still rely on pre-existing Council of Europe Conventions governing extradition – which contain stronger safeguards to protect British citizens. These include the 1957 European Convention on Extradition and the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters.184 Whilst that would add some delays and is far from ideal, it would allow for ongoing extradition cooperation whilst EAW reform is negotiated.

3.2. Category 2: Measures which are intended to achieve EU legislative

harmonisation

The EU crime and policing measures in this category are instruments which are designed to set a common standard across the EU in regard to various aspects of policy. When the UK has implemented these measures, and transposed them into national law, the EU measure has served its purpose and there is no longer any direct national interest in still participating in it – particularly if that comes at the cost of the UK having to cede new powers to the European Court of Justice and the European Commission, and the risk of judicial activism in interpreting such standard-setting measures. Equally, EU measures requiring harmonisation of national law are rarely necessary for effective cooperation. In most cases, this has reflected the Commission’s stated ambition of developing a uniform pan-EU criminal code. As a matter of democratic accountability, there are strong reasons for believing this should, for the UK at least, remain the prerogative of accountable law-makers in Parliament.

Drug bans

Document 20, Council Decision 1999/615/JHA, is a good example. This measure required member states to ban 4-MTA (4-Methylhioamphetamine), an amphetamine derivative linked to adverse reactions and the risk of over-dosage. In 2001, the UK brought 4-MTA and a number of phenethylamine derivatives under the scope of the Misuse of Drugs Act 1971, as class A drugs. Since then the possession, supply and production of 4-MTA has been prohibited, unless under lawful authority, and all attract class A criminal penalties.185 Having outlawed 4-MTA, the UK has fulfilled the purpose of this measure. Following a UK opt-out, there would be no need for the UK to rejoin this legislation at EU level. It would not be desirable to give the ECJ and the Commission the final say on whether or not the UK is adequately prohibiting the supply or production of 4-MTA.

More generally, there is no reason why decisions on which drugs to ban should be made in Brussels and subject to the jurisdiction of the ECJ, rather than remaining an issue for elected law makers to decide and the Supreme Court to interpret. Likewise, Document 76, Council Decision 2008/206/JHA, banned the party drug BZP (1-benzylpiperazine) across the EU. This is a recreational party drug with euphoric, stimulant properties. Studies revealed cases of serious intoxication or fatalities, with users describing side-effects such as anxiety, vomiting, headaches, difficulty sleeping, palpitations, confusion, collapse and seizures.186

Having criminalised BZP in 2009, the UK has implemented this measure. As with 4-MTA (above), if the UK were to exercise its opt-out, there would be no continuing need to participate in this EU legislation.

184 A full list of international crime and policing arrangements outside EU law can be found in Annex 3 of Open Europe, An unavoidable choice: more or

less EU ontrol over UK policing and criminal law, January 2012, http://www.openeurope.org.uk/Content/Documents/PDFs/JHA2014choice.pdf

185 Parliamentary Question answer of 12 March 2012

186 Europol/EMCDDA Joint Report on 1-benzylpiperazine, 2007, p. 10,

Click to access att_132205_EN_2007_BZP_Joint%20report.pdf

Child pornography

Document 23, Council Decision 2000/375/JHA, is designed to combat child pornography on the internet. The legislation sets out a number of requirements for member states, including engaging in dialogue with the internet industry, regularly checking whether technological changes require changes to their criminal law and ensuring that their law enforcement authorities act swiftly when they have received information on the suspected production, processing, possession or distribution of child pornography. The UK is fully compliant with this decision.187

In the aftermath of a UK block opt-out, the fact that the UK already fulfils the standards set out in this decision means that there would be no need to opt back in to the supranational EU legislation. To opt back in would expose the UK to the ECJ being the final authority over the legislation – for example, whether the UK fulfils its obligation to “ensure the widest and speediest possible cooperation” to investigate child pornography offences (Article 2), or whether the UK has adequately examined requiring internet providers to retain traffic-related data (Article 3(c)).

Instead, the UK could rely on its own domestic legislation. If it was considered important to uphold a common European standard, the UK could participate via a multilateral MoU with EU member states, committing to observe the standards through domestic legislation.

Offences relating to counterfeiting, forging or falsifying payment instruments

Document 29, Council Framework Decision 2001/413/JHA, is an anti-fraud measure. It sets out offences relating to counterfeiting or falsifying payment instruments such as cheques and credit cards. It also criminalises computer-based frauds, and sets out a sanctions regime. The provisions of this legislation have been fully implemented in UK law.188

Having amended domestic legislation to take account of the rules set out in this decision, the UK would not need to apply to opt back into it following the exercise of the block opt-out. It could instead rely on domestic legislation, which was recently consolidated and updated by the Fraud Act 2006. Alternatively, it could commit to an MoU with its EU partners to maintain the standards set out in this decision. Either option would avoid a situation developing where the ECJ and the Commission are able to rule on the adequacy of, or re-write, the UK’s regime for combating fraud.

Document 34, Council Framework Decision 2001/383/JHA, is another EU measure setting benchmarks for member states, with regard to criminal penalties for forging currency, specifically including the Euro. It involved the insertion of an amendment to an earlier piece of EU legislation, requiring member states to recognise previous convictions (under the conditions prevailing in its domestic law), to combat repeat offenders.

The government confirms that the provisions of this decision have been implemented in UK law.189 The deadline for implementation was 31 December 2002, and the legislation has served its purpose. There is no need for the UK to opt back into this measure.

Illegal immigration

Document 43, Council Framework Decision 2002/946/JHA, is another example of legislation which has served its purpose, at least with regard to the United Kingdom. This measure is designed to ensure member states have effective criminal regimes in place to combat both

187 Parliamentary Question answer of 14 March 2012

188 Parliamentary Question answer of 14 March 2012

189 Parliamentary Question answer of 15 March 2012

people and companies who facilitate illegal immigration (particularly people traffickers). The UK responded to this decision by passing section 143 of the Nationality, Immigration and Asylum Act 2002. This amended the Immigration Act 1971 to set out a penal regime for the following offences: assisting unlawful immigration to a member state (section 25); helping an asylum seeker to enter the United Kingdom (section 25A); and assisting entry to the United Kingdom in breach of deportation or exclusion order (section 25C).190

Having amended domestic legislation to take account of the rules set out in this decision, the UK would not need to apply to opt back into it following the exercise of the block opt-out. It could instead rely on that domestic legislation, or commit to a MoU with its EU partners to maintain the standards set out in this decision. Either option would avoid a situation developing where the ECJ and the Commission are able to rule on the adequacy of the UK’s regime to combat people trafficking. The terms of the measure, which require sanctions to be “effective, proportionate and dissuasive”, leave considerable margin for judicial legislation by the ECJ in the future.

Corruption

Document 47, Council Framework Decision 2003/568/JHA, is a measure to tackle private sector corruption. Member states are required to ensure that both legal and natural persons can be

effectively punished – including by imprisonment – for engaging in corrupt activities. The UK has implemented all of the decision’s requirements.191 Following a UK opt-out, there would be no purpose served by opting back into the measure. The UK could instead rely on its domestic legislation, including the Bribery Act 2010 (which has been described as “the toughest anti-corruption legislation in the world”192), and if necessary commit to upholding the provisions of this decision via an MoU.

Drug trafficking

Likewise, Document 54, Council Framework Decision 2004/757/JHA, lays down minimum provisions on the constituent elements of criminal acts and penalties in the field of drug trafficking. Its provisions have also been fully transposed into UK national law.193 Accordingly, no purpose would be served by opting back in.

Computer hacking

Document 60, Council Framework Decision 2005/222/JHA, is designed to harmonise member states’ criminal law in the area of attacks against information systems, including illegal access to such systems (Article 2) and illegal data interference (Article 4). The instrument establishes common definitions of the constituent elements of offences and the need for dissuasive but proportionate penalties. Where an offence is committed in the context of a criminal organisation, causes substantial loss or affects essential interests, this should be considered an aggravating circumstance. Conversely, where an offence causes only minor damage, the competent judicial authority may reduce the penalty.

The UK has enacted the provisions of the Decision mostly through existing domestic legislation such as the Computer Misuse Act.194 Having done so, no purpose would be served by opting back in.

There would be particular risks for the UK in accepting the extended jurisdiction of the ECJ and the Commission in this area. When transposing this legislation, the UK did not apply the provision

190 Parliamentary Question answer of 20 March 2012

191 Parliamentary Question answer of 20 March 2012

192 Daily Telegraph, 21 January 2011, http://www.telegraph.co.uk/finance/yourbusiness/bribery-act/8272140/Fears-Bribery-Act-will-harm-UK-plc.html

193 Parliamentary Question answer of 27 March 2012

194 Parliamentary Question answer of 26 March 2012

under Article 10(1)(b) regarding extra-territorial jurisdiction on the basis of nationality.195 There would be the prospect that this would be interpreted as inadequate implementation. The legislation as a whole contains considerable ambiguities. For example, several clauses contain the formulation that prosecutions should take place for various offences, “at least for cases which are not minor”. Such interpretations should be made by the UK Supreme Court, and any subsequent amendments necessary decided by Parliament.

Using previous convictions in criminal trials

Document 83, Council Framework Decision 2008/675/JHA, is related to criminal trials. Member states shall ensure that if a defendant has previous convictions in other member states, these can be taken into account in domestic court proceedings. Member states must also ensure that those previous convictions abroad are duly taken into consideration under the same conditions as previous national convictions. The measure was implemented in England and Wales by the Coroners and Justice Act 2009.196

Having adopted this legislation, there would be no need for the UK to opt back into it and accept the ECJ and Commission jurisdiction.

Racism and xenophobia

Document 86, Council Framework Decision 2008/913/JHA, is designed to set common standards to ensure racism and xenophobia are subject to effective criminal penalties. Some of these offences are already proscribed by UK legislation and the common law, including publicly inciting violence or hatred against a minority group in society (Article 1(1)(a)) or the commissioning of such an act by disseminating publications (Article 1(1)(b)).197

However, some of the other offences covered by this EU legislation reflect the different balance between free speech and criminality observed in other member states, reflecting different legal traditions. These include Article 1(1)(c) and (d), which criminalise publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes. Whilst such conduct may be deeply offensive, the UK does not necessarily criminalise it. As UK ministers have observed, were conduct of this type carried out in a manner likely to incite violence or hatred, it would be covered by existing offences.198 However, where such conduct would not incite violence or disorder, however insulting it may be to some, it might arguably fall within the realm of legitimate debate and free speech.

If the UK does exercise its block opt-out in 2014, it should not opt back into this measure. The UK already has a strict regime in place to prohibit public order offences. However, the balance between legitimate debate and public order offences is different in the UK from many continental jurisdictions. This reflects Britain’s tradition of liberty and strong emphasis on free speech. The balance in such legislation should remain the prerogative of elected lawmakers in the UK Parliament and subject to final interpretation by the UK Supreme Court.

3.3. Category 3: EU crime and policing measures which receive minimal use

The measures described below are of minimal significance to the UK. In each case, information available from the government indicates that the legislation has received little use by the British authorities to date, and in some cases no use at all. Following a UK opt-out decision, it would be possible for the UK to remain outside this supranational legislation and cooperate as necessary in the future on an ad hoc basis, bilaterally or under MoUs.

195 Parliamentary Question answer of 26 March 2012

196 Parliamentary Question answer of 11 June 2012

197 Parliamentary Question answer of 14 June 2012

198 Parliamentary Question answer of 14 June 2012

Drug trafficking

Document 11, EU Joint Action 97/372/JHA, is intended to help combat drug trafficking. It sets out a series of measures which member states should take to maximise their effectiveness, many of which are phrased in very broad terms, such as Article 2 (customs authorities to make “more intensive use of information”) or Article 7 (law enforcement agencies to analyse the intelligence and information available). The main action the legislation requires is for member states’ customs authorities to organise international joint customs surveillance operations, where possible in conjunction with third parties (Article 5). However, there are no recorded instances of the UK participating in such surveillance operations under the provisions of this legislation.199

In the event of a UK block opt-out, the UK would not need to opt back into this measure. The legislation appears to add little to the UK’s drug trafficking policy and international cooperation. Furthermore, the opaque wording of the measure would give subject to the ECJ and the Commission interpretation. Joint customs surveillance operations can still be organised on an ad hoc basis or under an MoU.

Protection of the European Communities’ financial interests

Document 12, the Council Act of 19 June 1997 drawing up the Second Protocol of the Convention on the protection of the European Communities’ financial interests, is an amending document to the 1995 Convention created to combat fraud affecting the EU. Much of the document sets out very basic standards for cooperation, such as Article 2 (establishing money laundering as a criminal offence) or Article 5 (taking measures to ensure that the proceeds of fraud and corruption can be seized).

Under Article 7 of the Second Protocol, member states can request assistance from the European Commission to facilitate their investigations in this field. Treasury ministers, who are responsible for this legislation, are unaware of any instance when UK authorities have asked for operational assistance from the European Commission. The UK has applied for funding from two EU programmes in this field: the Hercule programme combating cigarette smuggling and the Pericles programme against Euro counterfeiting.200 In both cases the funding received by the UK was very small. In 2002, the UK shared €28,900 with Germany and the Netherlands from the Pericles programme to fund a staff exchange with the authorities in the Czech Republic, Hungary, Lithuania, Poland, Slovenia and Switzerland.201 In 2011, HMRC received €10,570 under the Hercule II Programme to send two customs officials to Bulgaria to exchange information and build relationships with the authorities there.202

Given the low level of UK involvement, the UK could remain outside this measure, whilst continuing to provide practical cooperation and support as necessary.

Mutual assistance and cooperation between customs administrations

Document 14, the Council Act of 18 December 1997 drawing up the Convention on mutual assistance and cooperation between customs administrations, is designed to facilitate interaction between national customs agencies, with the aim of achieving a more integrated approach to their work. However, according to HM Revenue and Customs there has not been a single instance when (a) pursuing officers from another EU member state have continued their pursuit into UK territory without prior authorisation under Article 20 of the Convention (“hot pursuit”), (b) customs officers from another EU member state have conducted covert

199 Parliamentary Question answer of 6 March 2012

200 Parliamentary Question answer of 5 March 2012

201 European Commission, Implementation of the Pericles programme budgetary year 2002,

Click to access award2002_en.pdf

202 European Commission, Hercule II Programme 2007-2013, Grants for external training activities 2011,

Click to access grants2011_en.pdf

investigations on UK territory under Article 23 of the Convention or (c) UK authorities have participated in joint special investigation teams under Article 24 of the Convention.203 None of these measures have been used during the fourteen years that this legislation has been in force.

Driving disqualification

Document 15, Council Act of 17 June 1998 drawing up the Convention on Driving Disqualification, aims to ensure that drivers who have been disqualified from driving in a member state, whilst travelling abroad, should remain subject to disqualification when they return home. Under the terms of the Convention, member states are required to notify the state of residence of those disqualified without delay. However, this legislation has hardly been used. Since January 2010, mutual recognition of driving disqualifications has existed between the United Kingdom and the Republic of Ireland. To date, these are the only member states to have implemented the provisions in the whole of the EU. In the period to March 2012, the Driver and Vehicle Licensing Agency received 37 notifications of British drivers disqualified in Ireland and sent Ireland six notifications of Irish licence holders being disqualified in the UK.204

Accordingly, in the aftermath of a block opt-out decision, the UK would not need to opt back into this measure. To maintain the existing arrangements with the Republic of Ireland (and any other EU member states that implement the legislation), it would still be possible to operate on a bilateral basis coupled with domestic implementing legislation as necessary.

Data Protection Secretariat

Document 26, Council Decision 2000/641/JHA, establishes a Data Protection Secretariat to monitor the Europol and Schengen Conventions, as well as the Convention on the use of information technology for customs purposes. The Secretariat is a small body with only three officials.205

The Secretariat is of marginal significance to the UK. In the event of a UK block opt-out, the UK could remain outside the measure, whilst continuing to cooperate or support as necessary.

National Analysis Centres

Document 33, Council Decision 2001/887/JHA, requires member states to ensure their National Analysis Centres (NACs) submit their analysis regarding suspected counterfeit Euro

notes and coins to Europol. The UK NAC for Euro notes is the Bank of England. The Coin National Analysis Centre (CNAC) for Euro coins is at the UK National Central Office for the Suppression of Counterfeit Currency, within SOCA. The results of analysis of counterfeit euro currency are submitted to the European Central Bank’s Counterfeit Monitoring System (CMS). Europol has access to this database and can review the results instantaneously. The Bank of England submits analysis and information on discovered Euro banknotes to the CMS as a matter of routine. To date, CNAC has not dealt with any cases of detected counterfeit euro coins and has not, therefore, communicated any analysis results to Europol via the CMS.206

As a non-participant in the Euro, this measure is of minimal relevance to the UK. Following a UK block opt-out, it would be possible to remain outside this measure and still provide support and cooperation on a case-by-case basis.

203 Parliamentary Question answer of 1 March 2012

204 Parliamentary Question answer of 5 March 2012

205 Parliamentary Question answer of 13 March 2012

206 Parliamentary Question answer of 18 April 2012

European Network for the Protection of Public Figures

Document 44, Council Decision 2002/956/JHA, established the European Network for the Protection of Public Figures. The Network is made up of the national police and other services responsible for the protection of prominent public figures. Document 96, Council Decision 2009/796/JHA, is a piece of amending legislation which extends the definition of public figures to people in a non-official capacity who are deemed to be under threat because of

their contribution to public debate (for example, controversial celebrities). This legislation is intended to develop best practice and promote the secondment of officials. However, no officials have been seconded to or from the UK to the Network.207 Meanwhile, in the last five years, the UK has not provided any financial contribution to the Network.208

The protection of public figures is evidently important. However, this legislation is of marginal significance to the UK. Following a UK opt-out, security could continue to be coordinated as required with EU member states on the basis of either an MoU or ad hoc cooperation. The UK manages protection issues with a range of other countries around the world without the need for any supranational legislative arrangements.

Freezing orders for property or evidence

Document 48, Council Framework Decision 2003/577/JHA, establishes rules under which an EU member state recognises and executes freezing orders for property or evidence issued by the judicial authority of another EU member state in the context of criminal proceedings. The UK Central Authority within the Home Office deals with incoming and outgoing freezing order requests in relation to England, Wales and Northern Ireland. As of March 2012, the UK has not sent any freezing order requests to member states, and four Freezing Order requests have been received from member states. Of these, just one has been executed by the UK.209

The low level of uptake of this Framework Decision, which came into effect from 2005, suggests that its provisions are of minimal relevance to UK law enforcement. Equally, if the measure were to be used more often, it would be undesirable to give the ECJ overriding authority over decisions affecting property rights in the UK.

Cooperation of Member States’ special intervention units in situations of crisis

Document 81, Council Decision 2008/617/JHA, sets out the general rules and conditions for the cooperation of Member States’ special intervention units in situations of crisis. Cooperation is based on the provision of assistance and/or on the carrying out of operations on the territory of the requesting Member State. The details for implementing the practical aspects of the cooperation are settled between the requesting and the requested Member States directly. Ministers state that the UK response to any incident would be individually tailored to its nature and scale, and will not be drawn further in clarifying the circumstances under which the UK might make use of this legislation.210

Given this measure only sets out a framework for operational cooperation, the UK could replicate its principles under an MoU or dispense with the measure altogether.

Customs Information System

Document 100, Council Decision 2009/917/JHA, regulates the use of technology for customs purposes. It establishes the Customs Information System – a central database facility accessible through terminals in each member state. Member states can input data for the purpose of

207 Parliamentary Question answer of 19 March 2012

208 Parliamentary Question answer of 25 June 2012

209 Parliamentary Question answer of 27 March 2012

210 Parliamentary Question answer of 11 June 2012

sighting and reporting, discreet surveillance of suspects, specific checks and strategic or operational analysis. The Decision came into effect from 27 May 2011. As at the end of June 2012,

HMRC has not entered any data onto the Customs Information System database. 211

This measure may in time prove to be of value. The UK could decide to opt back in, or alternatively

seek to cooperate on an informal basis or under a MoU.

3.4. Category 4: EU crime and policing measures which are superfluous owing

to the existing UK legal regime

The EU crime and policing measures in this category are of negligible value to the UK because they duplicate laws and standards that are already upheld by the UK authorities. They therefore amount to an unnecessary additional layer of legislation.

Drug trafficking

A good example is Document 7, Council Joint Action 96/750/JHA. Following a series of EU Council meetings in 1995 and 1996, member states adopted a list of measures designed to boost effective cooperation in the fight against drug trafficking. These measures were the subject of very general drafting, such as: Article 3 (“Member States shall undertake to combat illicit movements of narcotic drugs and psychotropic substances within the Community”); or Article 8 (“Member States undertake to take the most appropriate steps to combat the illegal cultivation of plants containing active ingredients with narcotic properties”). Home Office ministers state that this document “sets out a number of broad measures that the UK undertakes as a matter of course when combating the threats we face from drug trafficking”.212

Following a UK opt-out, the UK could remain outside this legislation. It does not add materially to UK efforts to combat drug trafficking – and opting back in would potentially expose the UK to having the adequacy of its domestic arrangements subjected to the rulings of the ECJ and the Commission. The broad drafting of the legislation would be a particular concern in this regard.

Counterfeiting of the Euro

Document 24, Council Framework Decision 2000/383/JHA, introduced a series of measures designed to prevent counterfeiting of the Euro. Articles 3 to 9 of this legislation require member states to introduce a series of offences making it illegal to fraudulently make or alter the currency, while there are also provisions setting out the related penalties and rules governing the liability of legal persons. Existing UK law already satisfied those requirements without the need for amendment.213

There would be no need for the UK to opt back into this legislation in the event of a UK opt-out. Domestic legislation is already sufficiently robust to prevent fraud against the Euro, and the UK can always consider changes if the EU measure is amended over time.

Criminal sanctions in respect of paramethoxymethylamphetamine

Document 36, Council Decision 2002/188/JHA, is a measure introduced to impose criminal sanctions in respect of paramethoxymethylamphetamine (PMMA). This drug has been associated with a series of deaths where its presence in ecstasy tablets has been linked to fatal overdoses.214 However, the legislation was unnecessary in the UK, where PMMA has been controlled under the Misuse of Drugs Act 1971 as a Class A drug since 1977. The possession, supply and production of PMMA are therefore prohibited and, unless under lawful authority, attract Class A criminal

211 Parliamentary Question answer of 28 June 2012

212 Parliamentary Question answer of 5 March 2012

213 Parliamentary Question answer of 12 March 2012

214 BBC, 16 December 2011, http://www.bbc.co.uk/news/uk-scotland-16224849

penalties.215 Accordingly, there would be no reason for the UK to opt back into this measure.

Criminal penalties for terrorism

Document 39, Council Framework Decision 2002/475/JHA, introduced a series of provisions to combat terrorism in the aftermath of the 9/11 attacks on New York. Its thirteen articles define terrorist crimes and require member states to establish effective, proportionate and dissuasive criminal penalties for those who are found guilty of committing them. Ministers note that the UK has a “comprehensive” range of terrorism offences and so complied with most of the EU Decision before it came into effect in 2002.216 Similarly, Document 87, Council Framework Decision 2008/919/JHA, is a counter-terrorism measure amending Document 39. It added additional offences linked to terrorist activities, including “public provocation to commit a terrorist offence”, “recruitment for terrorism” and “training for terrorism”. However, ministers state that because of the UK’s comprehensive range of terrorism offences, no changes needed to be made following the introduction of this Decision.217

In the aftermath of a UK block opt-out, the UK would not need to opt back into either of these measures. UK counter-terrorism legislation is already very broad, and should remain subject to final interpretation by the UK Supreme Court.

Drug bans

Document 50, Council Decision 2003/847/JHA, is analogous to Document 36 (above). It was intended to address 2C-I, 2C-T-2, 2C-T-7 and TMA-2, a number of amphetamine derivatives capable of causing hallucinations and stimulant activity. EU experts associated these drugs with acute or chronic toxicity and member states agreed to impose control measures and criminal sanctions. However, as with PMMA, the UK had already banned the drugs concerned as Class A drugs since 1977 under the Misuse of Drugs Act 1971, rendering the EU legislation superfluous.

Exchange of data on stolen, lost or misappropriated passports with Interpol

Document 57, Council Common Position 2005/69/JHA, obliges EU member states to ensure their authorities exchange data on stolen, lost or misappropriated passports with Interpol, to prevent these from being used for criminal purposes. The UK Identity and Passport Service submits this data to Interpol via SOCA on a routine basis, in an arrangement which has been in place since 2004.

There would be no need for the UK to opt back into this measure. The UK already exchanges such data with Interpol and supranational legislation is not required to continue such practical cooperation.

Confiscate the proceeds of crime

Document 58, Council Framework Decision 2005/212/JHA, is a measure intended to ensure that member states have an effective regime to confiscate the proceeds of crime. EU countries are required to ensure that their regimes allow them to confiscate property belonging to individuals convicted of offences including Euro counterfeiting, human trafficking, the sexual exploitation of children and illicit drug trafficking. Ministers state that the UK’s Proceeds of Crime Act 2002, which predates the EU legislation, has an effective scheme for confiscation, not only of the proceeds of an instant conviction, but also the wider illegitimate wealth derived from crime.218 Given the UK regime already in place, there is no need to opt back into this measure.

215 Parliamentary Question answer of 19 March 2012

216 Parliamentary Question answer of 19 March 2012

217 Parliamentary Question answer of 14 June 2012

218 Parliamentary Question answer of 16 April 2012

Organised crime

Document 84, Council Framework Decision 2008/841/JHA, is a measure targeted at

organised crime. This instrument sets out the penalties for involvement in criminal organisations, which should be at least two to five years’ imprisonment. It also requires member

states to ensure that investigations into such offences are not dependent on a report or accusation made by a victim. However, ministers observe: “The UK has a high standard of domestic legislation on tackling serious and organised crime and fulfils the standards set out

in this instrument.”219 There would be no need for the UK to opt back into this measure.

Standards of forensic laboratory activities

Document 99, Council Framework Decision 2009/905/JHA, requires member states to ensure their forensic service providers carrying out laboratory activities are accredited to a common minimum standard. It requires accreditation in relation to DNA profiles by 30 November 2013 and accreditation in relation to fingerprint data by 30 November 2015.

In the UK, forensic suppliers who process DNA samples to produce DNA profiles which are added to the National DNA Database are all already compliant with the standards set out in the Framework Decision. As a matter of practice, the standards required by the decision are also inserted into all commercial contracts awarded by police services in this area.

A Forensic Quality Standards Project has been set up within the National Policing Improvement Agency’s (NPIA) Forensics 21 portfolio to assist police forces with the accreditation process mandated by this Framework Decision. Police forces are working towards accreditation: 22 forces have submitted their applications to the UK Accreditation Service (UKAS): 12 have undertaken a UKAS pre assessment; and two have been recommended for accreditation in the mandated areas. This approach has received the endorsement and backing of the Association of Chief Police Officers (ACPO) and the Forensic Science Regulator.220 Since the UK already meets the relevant standards, there appears little to be gained from opting back into this measure.

EU-US extradition

Document 102, the Agreement on extradition between the European Union and the United States, sets out certain requirements regarding extradition requests between the EU member states and the United States.

It only affected minor administrative changes to the UK’s extradition regime with the United States, which is already independently governed by the UK – US Extradition Treaty.221 Accordingly, in the aftermath of a UK decision to exercise the block opt-out, there would be no reason to opt

back into this legislation – especially when to do so would leave the UK subject to rulings by the ECJ and the Commission regarding its interpretation and implementation. Extradition treaties with third party states are effectively bilateral issues, and should remain subject to full UK democratic control.

3.5. Category 5: Lack of data to monitor the impact of EU legislation

For these EU crime and policing measures, there is either a lack of data to enable a proper assessment to be made regarding whether or not the legislation in question is effective, or no

assessment has ever been made by the UK government. It is extraordinary that the last government

signed the UK up to so many of these measures without any means of subsequently assessing either

their effectiveness or impact.

219 Parliamentary Question answer of 19 June 2012

220 Parliamentary Question answer of 2 July 2012

221 Parliamentary Question answer of 3 July 2012

Corruption involving EU officials and national officials in member states

Document 9, the Council Act of 26 May 1997 drawing up the Convention to fight corruption involving EU officials and national officials in member states, is a good example. Member states are required to ensure that corruption by officials – specifically including those of EU agencies or bodies based in its jurisdiction – are punishable offences. This may be a sensible measure. However, the government holds no information regarding whether any EU officials have been convicted of corruption offences in the UK, and no assessment has been made at national level about the overall effectiveness of the Convention.222

The lack of information makes it difficult to assess the value of the measure, but it seems likely that the benefits could be delivered through domestic legislation.

Document 49, Council Decision 2003/642/JHA, is a brief document, the sole purpose of which is to extend the scope of the Convention on the fight against corruption involving officials of the European Communities to include Gibraltar. The government has not made any assessment of the likely benefits of this legislation.223 This measure should be considered alongside the UK’s approach to the original Convention.

Information regarding sizeable groups of people who may pose a threat to law and order

Document 10, EU Joint Action 97/339/JHA, provides that member states shall provide other member states with information regarding sizeable groups of people who may pose a threat to law and order that they know are travelling to those other member states. This legislation is particularly targeted at football hooligans. Member states are required to provide the information they hold regarding the nature of the group in question, the route they will take and their means of transport, as well as to indicate the reliability of this information. However, the government holds no information on how many occasions it has either requested, or been requested to provide, this information.224

Such cooperation could be achieved on a non-legislative basis, without the need for the UK to opt back into this measure. If an international framework is required, it could be achieved for the UK through a MoU.

Transmitting samples of controlled substances between EU member states

Document 30, EU Council Decision 2001/419/JHA, establishes a system for transmitting samples of controlled substances between EU member states, so that they can be forensically investigated or used as the basis for a prosecution. Member states are required to designate a national contact point for the exchange of drug samples, which in the UK is the Home Office.225

The government does not hold any data on the number of such transfers to or from the UK in any of the last ten years.226 However, it seems likely that in the aftermath of an UK opt-out, this system could be continued on the basis of a MoU between the UK and EU member states if necessary or useful.

Confiscate goods to an equivalent value of the proceeds of crime

Document 31, Council Framework Decision 2001/500/JHA, is a measure designed to crack down on the proceeds of crime. In cases where these proceeds cannot be directly seized, and

222 Parliamentary Question answer of 29 February 2012

223 Parliamentary Question answer of 27 March 2012

224 Parliamentary Question answer of 1 March 2012

225 Parliamentary Question answer of 19 March 2012

226 Parliamentary Question answer of 27 March 2012

the value of the proceeds of an offence is greater than €4,000, member states are required to put in place measures to allow them to confiscate goods to an equivalent value (Article 3). They are also required to ensure that all requests from other member states which relate to asset identification, tracing, freezing or seizing and confiscation are addressed with the same priority as equivalent domestic cases (Article 4). The UK government does not hold the necessary information to evaluate the significance or otherwise of this decision. There are no central records of how many requests for assistance have been either issued or received by the UK, nor how many requests have been granted.227

If this legislation is of net positive value to the UK, following the opt-out decision the UK could consider opting back in. However, this would leave scope for the ECJ to assess (for example) whether the UK responds adequately to requests for assistance from other member states. The UK could alternatively opt to rely on its domestic legislation (including the Proceeds of Crime Act 2002), together with an accompanying MoU committing the UK to uphold pan-EU standards without subjecting itself to the authority of the Commission or ECJ.

Security at football matches

Document 37, Council Decision 2002/348/JHA, was enacted to improve security at football matches. Member states are required to establish a national football intelligence point to coordinate the exchange of relevant information ahead of games with an international dimension (either at club or full international level). Like Document 10 (above), this aims to curb fan violence, and there is specific provision for the exchange of data on “high-risk supporters”. The government is unable to provide any assessment of this instrument’s value.228

Given the UK interest in tackling football hooliganism, the UK could opt back into this measure or seek to continue cooperation on the basis of an MoU.

Document 72, Council Decision 2007/412/JHA, is a minor amending document to Document 37 (above), concerning security at international football matches. Following experiences at Euro 2004, the national football information points are required to produce and circulate regular national football disorder assessments. The government could not provide any evaluation of the value of this legislation.229 Following an opt-out decision, its stance on the future of this legislation should be governed by its approach to the original Decision from 2002.

Mutual assistance in identifying targets associated with genocide, crimes against humanity and war crimes

Document 51, Council Decision 2003/335/JHA, targets those associated with genocide, crimes against humanity and war crimes. Member states commit to mutual assistance in investigations and prosecutions under the legislation. Specifically, they are also required to ensure that law enforcement authorities are alerted when an individual applies for a residence permit, who is suspected of committing any of these crimes. However, no information is available centrally regarding the number of people who have applied for residency in the UK that have subsequently gone on to face prosecution for genocide, crimes against humanity or war crimes either in the UK, in another member state or before an international criminal court.230 Accordingly, a proper evaluation of the success of this legislation is impossible.

The UK has been at the forefront of efforts to support the International Criminal Court and ensure domestic accountability at national level for war crimes. It could opt back into this measure or seek to continue cooperation on the basis of an MoU and domestic legislation.

227 Parliamentary Question answer of 27 March 2012

228 Parliamentary Question answer of 27 March 2012

229 Parliamentary Question answer of 11 June 2012

230 Parliamentary Question answer of 1 May 2012

Europol as the Central Office for combating Euro counterfeiting

Document 64, Council Decision 2005/511/JHA, designates Europol as the Central Office for combating Euro counterfeiting. The preamble to this legislation emphasises that this measure will facilitate cooperation between member states and give third countries a central contact for information on this issue. The government has made no evaluation of the value of this legislation.231

After exercising its block opt out, the UK could continue to cooperate with Europol on an ad hoc basis or a MoU as and when cases of Euro counterfeiting arise.

Exchange of information and cooperation regarding terrorist offences

Document 66, EU Council Decision 2005/671/JHA, concerns the exchange of information and cooperation regarding terrorist offences. Under Article 2 of this legislation, member states are required to designate a specialised service within its police service and other law enforcement agencies to collect all relevant information regarding terrorist offences. Where this information may affect two or more member states, member states are also required to forward it to Europol and Eurojust. The government states that although it attaches high importance to the exchange of information and co-operation in relation to terrorism offences, they do not record the name of the legal instrument under which such requests are issued and received.232 Following a UK opt-out decision, the UK could maintain this “postbox” service without the need to opt back into this supranational measure.

Exchange of information and intelligence

Document 69, Council Framework Decision 2006/960/JHA, is designed to simplify the exchange of information and intelligence between member states. Where information is held on a database, member states are required to respond to urgent requests for information and intelligence within eight hours. For non-urgent cases, member states should receive a reply within one week. Member states are only allowed to decline requests on the basis that they would compromise essential national security interests, an ongoing investigation, or the safety of individuals, or if the information requested is clearly disproportionate or irrelevant. The government has not assessed the value of this legislation.233 In the aftermath of a UK opt-out, the UK could continue these arrangements on the basis of a bilateral or multilateral MoUs with EU member states. Given the measure affects national security, it would be undesirable to subject its final interpretation to the authority of the Commission and ECJ.

Tracing and identification of the proceeds of crime

Document 73, Council Decision 2007/845/JHA, is intended to disrupt cross-border criminality through the more effective tracing and identification of the proceeds of crime. It requires member states to establish an Asset Recovery Office, to facilitate cooperation, best practice and information exchanges between countries. The government declined to give any evaluation of this legislation.234 Following a block UK opt-out, the UK Asset Recovery Office could continue to cooperate either independently or on the basis of a MoU.

Protection of personal data processed in the course of police and judicial cooperation

Document 90, Council Framework Decision 2008/977/JHA, governs the protection of personal data processed in the course of police and judicial cooperation between EU member states.

231 Parliamentary Question answer of 22 May 2012

232 Parliamentary Question answer of 11 July 2012

233 Parliamentary Question answer of 11 June 2012

234 Parliamentary Question answer of 11 June 2012

It contains a range of safeguards designed to protect individuals’ details. For example, Article 4 mandates the rectification of inaccurate data, and its erasure when it is no longer required. Under Article 18, individuals have the right to complain if they do not believe their information has been rectified or erased in a satisfactory fashion. Article 19 entitles any person who has suffered damage as a result of an unlawful processing operation to seek compensation from the relevant authority or agency. Neither the Home Office nor the Ministry of Justice hold information regarding the number of occasions on which these forms of redress have been used. 235 Given domestic standards of data protection, it appears that little would be added by opting back into this measure.

Mutual recognition of trials in absentia

Document 92, Council Framework Decision 2009/299/JHA, is a measure designed to improve the mutual recognition of judicial decisions issued in the absence of the person concerned at the hearing. It amends a variety of existing pieces of EU legislation in this area, including the European Arrest Warrant and confiscation orders. To date, the government has neither made nor published any assessment of its effectiveness.236

This is an area where there are very different standards and approaches across the EU, and Britain does not conduct trials in absentia. It is open to question the extent to which the UK should recognise judicial decisions that do not reflect national standards of due process. This measure would require a more detailed examination based on a proper consideration of its implementation to date.

European Crime Prevention Network

Document 98, Council Decision 2009/902/JHA, established the European Crime Prevention Network. The Network consists of a Board and a secretariat, to which each member state appoints a national representative and a substitute. The Network’s tasks include facilitating contacts between national forces, coordinating conferences, circulating best practice on crime prevention activities and implementing a work programme based on relevant threats. The government states that it is not possible to quantify the involvement of police forces in England and Wales in the activities of the European Crime Prevention Network, because those interactions take place primarily through police forces uploading information to a public access website.237

The UK might wish to continue to work with the European Crime Prevention Network, either by opting back into the measure or alternatively on the basis of a MoU. Facilitating better cooperation between national police forces is worthwhile, but does not require supranational legislation.

Mutual legal assistance between the EU and the United States of America

Document 101, the Agreement on mutual legal assistance between the EU and the United States of America, entered into force in February 2010. It extends some cooperation measures between EU countries to the United States, including fast-tracking of requests for mutual legal assistance and the introduction of video-conferencing. Article 4 requires EU countries and the United States to exchange details on the bank accounts of those suspected of or charged with an offence which are held in their respective jurisdictions. However, the Home Office does not record any information on the number of requests for such information it has either issued or received. Likewise, Article 5 allows joint investigation teams to be established in EU countries and the United States to facilitate investigations and prosecutions. This is potentially a wide-ranging measure, allowing American police to operate in the UK and vice versa. However, the

235 Parliamentary Question answer of 17 July 2012

236 Parliamentary Question answer of 20 June 2012

237 Parliamentary Question answer of 20 June 2012

Home Office does not collate data centrally on the operations of such teams. They have no records of any operations in the United States.238

Following a UK opt out decision, the UK would not need to be involved with this legislation. The terms on which mutual legal assistance is extended to third states should remain a matter for bilateral agreements.

3.6. Category 6: EU crime and policing measures which have not (yet) been

implemented by the UK

This group of EU crime and policing measures have not been implemented by the UK, so there is no compelling need to opt back in immediately after exercise of the block opt out. In some cases, this is because the UK has not implemented the necessary legislation. In others, it is because the measures are to be brought into force at some future date – either specified or as yet undetermined. Following a UK opt-out, there would be time for a detailed assessment of the case for opting back into these measures along with alternative models of future cooperation that do not require subjecting UK law and UK courts to the jurisdiction of the Commission and ECJ.

Mutual recognition of confiscation orders

Document 68, Council Framework Decision 2006/783/JHA, provides for the mutual recognition of “confiscation orders” between member states. These are defined as final penalties imposed by a court in relation to a criminal offence, leading to the deprivation of property. Under Article 4 of this agreement, member states are entitled to transmit a confiscation order (together with accompanying paperwork) to another member state where they have reasonable grounds to believe that the natural or legal person against whom the confiscation order has been issued has property or income.

However, the UK has not yet implemented this Framework Decision. Six years on from the legislation being enacted, the government notes that “Implementing the Framework Decision will be complex for a number of reasons, including because it will require changes to the current UK restraint and confiscation regime and changes to primary legislation.”239 In June 2012, the government announced that the UK will not opt in to a proposed new directive regarding the confiscation of the proceeds of crime on the basis that it might actually weaken the existing UK regime.240

Mutual recognition of confiscation orders is a laudable aim, but could be achieved by a range of means. As well as opting back in, the UK could cooperate on the basis of bilateral or multilateral MoUs with member states, accompanied by domestic legislation.

Prüm decisions on exchange of DNA data, fingerprints and vehicle registration

Document 79, Council Decision 2008/615/JHA, is the first of the “Prüm” decisions intended to combat cross-border crime. Member states are required to ensure the availability of reference data they hold on DNA profiles (Article 2), fingerprints (Article 8) and vehicle registration data (Article 12). Other member states can then carry out searches against this information, on an anonymised basis, to see whether this data can enable them to solve difficult crimes. They receive results on a “hit/no hit” basis, allowing them to find out whether a DNA profile,

238 Parliamentary Question answer of 2 July 2012

239 House of Commons European Scrutiny Committee, Nineteenth Report of session 2010-12 (March 2011), section 14,

http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/428-xvii/428xvi16.htm

240 House of Commons Hansard, 12 June 2012, column 268 onwards,

http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm120612/debtext/120612-0003.htm#12061284000060

fingerprint or licence plate has matched with information held by the other country’s police force. A more detailed enquiry can then be launched using this information.

Document 80, Council Decision 2008/616/JHA, is the second “Prüm” decision. This sets out the technical provisions regarding the making and transmission of search results. It also has an annex establishing the protocols regarding the standard for DNA profile matches.

The deadline for implementing the Prüm decisions was August 2011. However, the government

decided not to meet this deadline. In a letter to the House of Commons European Scrutiny Committee, Home Office Minister James Brokenshire explained the reasons for this. First, citing budgetary constraints, the minister explained that work is expected to concentrate on the vehicle registration data and DNA elements of Prum “later in the 2011-2015 period”.241 Second, the government “need to make sure that they way in which we implement Prüm is compatible with this Government’s focus on civil liberties.”

The UK is particularly vulnerable to concerns about privacy protection, because the state stores too much data on its citizens. Take, for example, DNA samples. In the UK, they are currently taken from those arrested on suspicion of a recordable offence. In practice, this means any offence punishable with imprisonment. However, in most EU states DNA is kept and held only for serious crimes.242 This disparity is reflected in the fact that, as of 2005, the UK had the largest DNA database in the world, half as large again as those of all the other EU member states put together.243 At the time, 5.2% of the UK population was on the database. This compared to an EU average of just over 1%, and 0.5% in the United States.244 As the House of Lords European Union Committee observed:

“The threshold for holding DNA profiles on the United Kingdom DNA database is far lower than in any other member state, and the proportion of the population on the database correspondingly far higher.”245

The House of Lords Committee also noted that “the cost to the United Kingdom of supplying information to other states may be one of the highest, given the size of its DNA database.”246 In the same way that the UK has received a huge volume of requests under the European Arrest Warrant system, so the authorities could expect to face major demands on their time and resources if the Prüm measures are implemented.

The size of the UK’s DNA database has expanded further since 2005. In January 2012, 5.5 million people had their DNA retained on the database – equivalent to 8.7% of the UK population.247

The UK database contains information on people who gave DNA samples but who were

subsequently found innocent of any crime. As of 2010, nearly 1.1 million innocent Britons’

DNA was stored on the database.248 There is a fundamental distinction between sharing data

on convicted criminals and on innocent citizens.

The risk to innocent individuals remains despite the Protection of Freedoms Act 2012, which banned the retention of DNA from individuals arrested on suspicion, but not convicted of, minor offences. In 2011, the Home Office disclosed that because DNA profiles are stored in bundles,

241 Letter from James Brokenshire MP to Bill Cash MP, Chairman of the European Scrutiny Committee, 7 February 2011. Copy obtained from the European

Scrutiny Committee clerks, February 2012.

242 House of Lords European Union Committee, Eighteenth report of session 2006/07, Prüm: an effective weapon against terrorism and crime? (2007), p. 16

243 House of Lords European Union Committee, Eighteenth report of session 2006/07, Prüm: an effective weapon against terrorism and crime? (2007), p.17. Based on Home Office figures from 2005 showing that 5.24% of the UK population was on the database. Austria was the member state with the

next highest proportion (0.98%).

244 Ibid.

245 House of Lords European Union Committee, Eighteenth report of session 2006/07, Prüm: an effective weapon against terrorism and crime? (2007), p. 17

246 House of Lords European Union Committee, Eighteenth report of session 2006/07, Prüm: an effective weapon against terrorism and crime? (2007), p. 24

247 Big Brother Watch, The National DNA database, June 2012, p. 28. Figures from the National Policing Improvement Agency. The UK population is estimated to number 63 million people (Herald Scotland, 17 July 2012, http://www.heraldscotland.com/mobile/news/home-news/population-of-uk-

has-risen-to-more-than-63-million.18163550).

248 Hansard, written answer by James Brokenshire MP to Andrew Percy MP, 3 March 2011, column 539W, http://www.publications.parliament.uk/pa/

cm201011/cmhansrd/cm110303/text/110303w0002.htm#11030356000724

existing profiles from innocent people will not be deleted, but only anonymised. The government accepts that it is possible that a laboratory could identify an individual’s profile, in conjunction with the police force which took the sample, by giving the details of its barcode to the force and asking for the individual’s name.249 The Protection of Freedoms Act also includes discretionary powers for the Secretary of State to designate some circumstances when biometric material can be taken from innocent people and retained, as well as discretionary powers for Chief Constables to retain biometric material when it is deemed to be in the interest of national security.250

The risk that data sharing under Prüm would represent to innocent individuals is multiplied because the standard of DNA matches required for a “hit” under the Prüm decision is 40% less accurate than those used in the UK. The Netherlands Forensic Institute has conducted research into the number of “false positive” (i.e. incorrect) DNA matches that occurred in the Netherlands during the first three years of the Prüm decision being operative there (2008-2011). This showed that for six loci-matches (the minimum number of matches required under the Prüm legislation), 67% of the results were false positives. For 7 loci-matches, 5% were false positives.251 By contrast, in the UK, laboratories use 10 loci-matches to generate profiles. In the United States, where 13 loci-matches are currently used, an FBI working party recommended in 2010 that this be increased to 24 loci-matches.252

The risks the Prüm system would present are demonstrated by the case of Peter Hamkin, a bartender from Liverpool. In 2003, Mr Hamkin was wrongly arrested at the pub where he worked for the murder of an Italian woman, Annalisa Vincenti, in Tuscany, because of a “false positive” DNA match. He had never been to Italy in his life. Extradition proceedings against him were only halted when a second DNA test established his innocence. Speaking at the time, Mr Hamkin said:

“This has been the worst three weeks of my life…I had dozens of alibi witnesses but as far as they were concerned I was guilty because the DNA said so.”253

An additional concern relates to the operational integrity of systems. Given the various public sector database disasters which have occurred in the UK in recent years, including the loss of 25 million child benefit records by HMRC in 2007254, the advisability of signing up to a data-sharing scheme of this magnitude is open to question – particularly because it would be operating in conjunction with countries with less developed bureaucracies.

For these reasons, the UK has not yet exchanged any data with other EU member states under the terms of the Prüm regime.255 To date, the case has not been made that the UK should opt into the two Prüm decisions. The law enforcement gains have not been substantiated. The risks of data-sharing on such a massive scale with EU partners have not been addressed – especially given the potential for innocent people to be caught up in the investigations of foreign authorities, and the risk of criminals gaining fraudulent access to such information. Furthermore, the UK would be wary of ceding democratic control over this sensitive process to the Commission and the ECJ.

If the system is improved and can be demonstrated over time to serve a clear law enforcement function, whilst not subjecting ordinary citizens to undue risks, the UK

could always reconsider its approach.

249 Joint Committee on Human Rights, Eighteenth Report of 2010-12, Legislative Scrutiny: Protection of Freedoms Bill, September 2011,

http://www.publications.parliament.uk/pa/jt201012/jtselect/jtrights/195/19505.htm

250 Joint Committee on Human Rights, Eighteenth Report of 2010-12, Legislative Scrutiny: Protection of Freedoms Bill, September 2011,

http://www.publications.parliament.uk/pa/jt201012/jtselect/jtrights/195/19505.htm

251 C. P. van der Beek, Forensic DNA Profiles Crossing Borders in Europe (Implementation of the Treaty of Prüm), 2011,

http://www.promega.com/resources/articles/profiles-in-dna/2011/forensic-dna-profiles-crossing-borders-in-europe/, p. 7.

Loci-matches refer to the number of matches on a chromosome in the DNA sample.

252 BBC, 17 October 2011, http://www.bbc.co.uk/news/science-environment-15311718. The number of matches required by the Prüm decision is lower

to enable interaction between the different national databases across the EU, which operate in slightly different ways.

253 Liverpool Daily Post, 10 March 2003,

http://icliverpool.icnetwork.co.uk/0100news/0100regionalnews/page.cfm?objectid=12718961&method=full&siteid=50061

254 BBC, 21 November 2007, http://news.bbc.co.uk/1/hi/7104945.stm

255 Parliamentary Question answer of 28 February 2012

Supervision of probationary measures

Document 88, Council Framework Decision 2008/947/JHA, covers the supervision of probationary measures. It allows member states to forward judgments regarding individuals from other EU member states who have been convicted of criminal offences and are subject to probation, suspended sentences or alternative sanctions to their home member states. The sanctions measures imposed on those offenders can then be supervised by the “executing state”. From the time it receives the probation decision and the accompanying paperwork, an

executing state has 60 days in which to inform the issuing State in writing, whether or not it recognises the judgment or the probation decision and will assume responsibility for supervising its execution.

This measure has not been implemented by the UK.256 Whilst such a far-reaching measure could be considered as part of the UK’s future JHA relationship, there is no impending need to opt back in.

European Evidence Warrant

Document 91, Council Framework Decision 2008/978/JHA, established the European Evidence Warrant (the EEW). An EEW can be issued in order to obtain evidence in criminal cases from the authorities of another member state. That evidence can take the form of objects, documents or data. Requests for evidence must take a standard form and be translated into the language of the executing state, while the authorities of the state issuing an EEW must also be satisfied both that the evidence could also be obtained under national law in a similar case and that it is necessary and proportionate for the proceedings in question. The execution of an EEW is not subject to establishing dual criminality (i.e. that the act committed is a criminal offence in both the issuing and the executing state) if it is not necessary to carry out search or seizure, or if the offence is punishable by a sentence of at least three years’ imprisonment and is mentioned on a list of offences in the Framework Decision.257

The UK has not implemented this decision. The government suspended implementation in July 2010, when the decision was taken to opt in to the development of the controversial European Investigation Order (EIO). Given that the UK no longer has any intention to implement the EEW decision, there would appears to be little case for opting back into this measure.

European Supervision Order

Document 97, Council Framework Decision 2009/829/JHA, is known as the European Supervision Order. It introduces the possibility of transferring a pre-trial non-custodial supervision measure (i.e. release on bail) from the member state where an individual is suspected of having committed an offence, to the member state where they are normally resident (the executing state). The suspected person can then be subject to bail in their home state until their trial takes place in the issuing state, rather than having to spend months in a foreign country.

An executing state must recognise supervision measures and take the necessary measures for monitoring an individual within twenty days of receipt. The framework decision lists certain offences for which decisions on supervision measures must in all cases be recognised, without verifying the double criminality of the acts. These offences include serious crimes such as murder, terrorism and rape, but also some less well-defined offences such as “racism and xenophobia”. For any other offences, the executing state may require the decision to relate to acts that are also an offence under its law in order to recognise the decision. Under certain limited circumstances, it may refuse to recognise the decision on supervision measures

256 Parliamentary Question answer of 3 July 2012 to Lorely Burt. Hansard, 3 July 2012, col. 630W,

http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm120703/text/120703w0004.htm

257 For full details, see the EU Europa website, https://e-justice.europa.eu/content_evidence-92-en.do

altogether (for example, if a prosecution is statute-barred or if an individual is under the executing state’s age of criminal responsibility).

If the supervision measures required by the issuing state are not compatible with the law of the executing state, its authorities may adapt these measures. However, the adapted measures must correspond as closely as possible to, and may in no case be more severe than, the original measures imposed.258

This EU measure does not fall due for implementation until 1 December 2012.259 This measure should be considered in light of the UK approach to the EAW (above). The possibility of domestically-supervised bail procedures could help address some of the flaws in the practical operation of the EAW.

Conflicts of jurisdiction in criminal proceedings

Document 107, Council Framework Decision 2009/948/JHA, is a measure enacted to resolve conflicts of jurisdiction in criminal proceedings. When the authorities in a member state have reasonable grounds to believe that a parallel investigation is being conducted in another member state in respect of the same facts involving the same person, which could lead to proceedings in two or more member states, they should make contact with the other member state to try to reach a consensus (Articles 5 and 10) over how best to proceed – including, where appropriate, regarding which member state should lead any criminal proceedings. If it is not possible to achieve a consensus, Eurojust is the body empowered to make a final adjudication over future steps. This decision has not yet been implemented by the UK.260

This is highly intrusive legislation, which could see Eurojust ruling that the UK should cede a lead role in a criminal prosecution to another member state, subject to the overarching jurisdiction of the ECJ. The UK would be better served by remaining outside this legislation, and opting to resolve potential conflicts of jurisdiction via bilateral cooperation with other countries or under a multilateral MoU.

3.7. Category 7: EU crime and policing measures which are redundant

This set of EU crime and policing measures have been rendered redundant by subsequent developments. Some have been formally repealed and replaced since the passing of the Lisbon Treaty, and are therefore no longer in effect. Their replacement measures fall outside the terms of the 2014 opt-out decision. Others have been superseded by new legislation which

renders their functions outdated.

Following a UK opt-out decision, it would not be necessary for the UK to opt back into

these agreements.

Directory of national experts in combating various forms of crime

Document 6, EU Council Joint Action 96/747/JHA, targets organised crime. It established a directory listing national experts in combating various forms of crime, so that these specialists

could be called upon when necessary to give the best possible advice to member states’

law enforcement agencies.

The financial cost of maintaining the directory (the Europol Knowledge Management Centre) was borne by Europol. In recent years, online thematic expert platforms emerged in parallel to facilitate expert engagement and superseded the directory, which closed on 16 February

258 For full details see the EU Europa website,

http://europa.eu/legislation_summaries/justice_freedom_security/judicial_cooperation_in_criminal_matters/jl0032_en.htm#

259 Parliamentary Question answer of 25 June 2012

260 Parliamentary Question answer of 2 July 2012

2012.261 Given that the directory no longer exists, there is no case for the UK to opt back into this measure.

Standardising alerts about counterfeit documents

Document 22, Council Decision 2000/261/JHA, introduced a standard form and questionnaire for use when providing information alerts about counterfeit documents to other EU member states. This followed on from Joint Action 98/700/JHA of 3 December 1998, concerning the setting up of a European Image Archiving System (FADO). This system is a computerised archive containing images and textual information relating to falsified and authentic identity documents such as passports, identity cards, visas, residence permits and driving licenses. However, it was recognised that it would be some years before FADO was fully functional and this standard form was designed to fill the gap until then.

FADO is now fully rolled out across the EU and this system is therefore rarely used.262 On the basis that the old paper-based system has been superseded by the new online version, there is no reason for the UK to opt back into this measure.

Rights of victims of crime across the EU

Document 28, Council Framework Decision 2001/220/JHA, was intended to strengthen the rights of victims of crime across the EU. Member states committed to a series of common standards. These include giving victims the right to be heard during proceedings, and to supply evidence (Article 3); properly informing them about the support services available, and their right to legal advice (Article 4); and ensuring a suitable level of protection (Article 8).

However, this legislation did not achieve its aims. In 2009, the European Commission published an assessment of its implementation. This concluded:

“The implementation of this Framework Decision is not satisfactory. The national legislation sent to the Commission contains numerous omissions. Moreover, it largely reflects existing practice prior to adoption of the Framework Decision. The aim of harmonising legislation in this field has not been achieved owing to the wide disparity in national laws. Many provisions have been implemented by way of non-binding guidelines, charters and recommendations. The Commission cannot assess whether these are adhered to in practice.”263

In May 2011, the Commission published a proposal for a new Directive on victims’ rights, extending and strengthening the 2001 legislation.264 The UK opted into this Directive.265 MEPs formally approved the new Directive in September 2012. EU member states now have three years to implement the Directive into national legislation.266 The new victims’ rights directive replaces the 2001 measure, which has therefore been removed from the scope of the 2014 opt-out.

Under the terms of the Protocol, every time the UK opts into a new EU law which amends, repeals or replaces an existing pre-Lisbon measure, that measure is removed from the body of laws subject to the block opt-out. Accordingly, this legislation is now no longer subject to the opt-out decision.

261 Parliamentary Question answer of 6 March 2012

262 Parliamentary Question answer of 8 March 2012

263 European Commission, Report COM(2009) 166 final, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0166:FIN:EN:PDF, 20 April 2009, p. 9

264 Full details can be accessed here. EU, Europa,

http://europa.eu/legislation_summaries/justice_freedom_security/judicial_cooperation_in_criminal_matters/jl0054_en.htm

265 Parliamentary Question answer of 13 March 2012

266 BBC, 11 September 2012, http://news.bbc.co.uk/democracylive/hi/europe/newsid_9749000/9749705.stm

Human trafficking and sexual exploitation of children

Document 42, Council Framework Decision 2002/629/JHA, has been replaced by EU Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims, which the UK opted into.267 This replacement measure falls outside the scope of the UK opt-out.

Document 52, Council Framework Decision 2004/68/JHA, was replaced by EU Directive 2011/92/EU on combating the sexual abuse and sexual exploitation of children and child pornography. This replacement measure falls outside the scope of the UK opt-out.

Passenger Name Record data

Document 74, the 2007 Agreement between the US and the EU on the processing and transfer of Passenger Name Record (PNR) data, was an anti-terrorism measure that saw the EU and the USA commit to share information about air passengers. This information included data such as the date of reservation, the date of intended travel, baggage information, seat information (including seat number) and all available contact information. Ministers describe the exchange system as a “useful tool” in combating the threat of terrorism. However, the 2007 agreement has been superseded by a new agreement governing the exchange of PNR between the EU and the USA, which was concluded on 26 April 2012. This replacement measure falls outside the scope of the UK opt-out.

Document 82, Council Decision 2008/651/CFSP/JHA, governed the exchange of PNR data between the EU and Australia. This has also been replaced by an Agreement between the EU and Australia on the processing and transfer of PNR data by air carriers to the Australian Customs and Border Protection Service, signed on 29 September 2011. This replacement measure falls outside the scope of the UK opt-out.

Schengen extradition arrangements

Document 113, CH/Com-ex (96) decl 6 rev 2, was a 1996 declaration by the Schengen signatories regarding extradition. States committed to ensure that individuals being released from detention who were wanted for extradition purpose by another signatory state did not have the opportunity to escape.

Document 134, Council Decision 2003/169/JHA, determined which provisions of the 1995 Convention on simplified extradition procedures between the member states of the European Union and of the 1996 Convention relating to extradition between the member states of the European Union constituted developments of the Schengen Acquis.

The EAW replaces the extradition provisions of the Schengen Acquis, rendering these measures obsolete.

3.8. Category 8: EU crime and policing measures which do not directly affect

the UK

The EU crime and policing measures in this category concern agreements sanctioning the exchange of classified information between the institutions of the European Union – rather than

member states – and third countries.

Document 53, Council Decision 2004/731/EC, is the first such agreement, between Bosnia-Herzegovina and the institutions of the EU. The EU is defined as the Council of

267 Ministry of Justice, Report to Parliament on the application of Protocols 19 and 21 to the Treaty on European Union (TEU) and the Treaty on the

Functioning of the European Uniion (TFEU) (“the Treaties”) in relation to EU Justice and Home Affairs matters (1 December 2010 – 30 November 2011),

January 2012, http://www.official-documents.gov.uk/document/cm82/8265/8265.pdf

the EU, the Secretary General/High Representative and the General Secretariat of the Council, and the European Commission. In each case, the party receiving classified information undertakes to protect it and not to use it for purposes other than those agreed.

The UK government’s position is that on the basis of Britain’s desire for a stable and prosperous Bosnia and Herzegovina, moving towards EU membership, it is in the national interest for there to be greater co-operation between the EU and the Government of Bosnia and Herzegovina, and that a closer relationship, particularly as Bosnia and Herzegovina moves along its path towards the EU, will require increased sharing of information. This agreement acts to ensure that such information is correctly protected and properly secured.268

Given that this agreement concerns information exchanged between Bosnia and the EU institutions, rather than directly between the UK and Bosnia, the UK need not opt back into the measure. In cases where any information needs to be exchanged directly between the UK and Bosnia, this should be negotiated on a bilateral basis.

Document 55, Council Decision 2004/843/CFSP, establishes an equivalent agreement between the EU and Norway. The government backs the agreement on the grounds that Norway is a close and reliable partner on defence and security issues, citing its membership of NATO, the European Free Trade Agreement, the European economic area and Schengen. It adds, “The implementation of this agreement further cements the UK’s close ties with Norway as well as the Norwegian relationship with the European Union”.269

As with the Bosnian agreement, because this decision concerns information exchanged

between Norway and the EU institutions, rather than Britain itself, the UK need not opt back into the measure.

Document 61, Council Decision 2005/296/CFSP, approved an information-sharing agreement between the EU and Macedonia. Document 63, Council Decision 2005/481/CFSP, sanctioned the same kind of agreement between the EU and the Ukraine. Document 70, Council Decision 2006/317/CFSP, approved the sharing of classified information between the EU and Croatia, which will accede to the EU in 2013.270 Document 71, Council Decision 2006/467/CFSP, approved the sharing of classified information between the EU and Iceland.271 Document 75, Council Decision 2007/274/JHA, approved the sharing of classified information between the EU and the USA.272 Document 78, Council Decision 2008/568/CFSP, approved the sharing of classified information between the EU and Switzerland.273 Document 109, Council Decision 2010/348/EC, approved the sharing of classified information between the EU and the Russian Federation.274

As with the Bosnian and Norwegian agreements, there is no practical reason for the UK to opt back into these measures.

Document 103, Council Decision 2009/933/CFSP, extended the EU’s extradition treaty with the United States to cover the Netherlands Antilles and Aruba. The government notes that this instrument is merely an extension of existing legislation, and that it “has no effect on extradition between the UK and the US”.275 Given that this legislation has no impact on the UK, there is no reason for the UK to opt back into this measure.

268 Parliamentary Question answer of 26 March 2012

269 Parliamentary Question answer of 26 March 2012

270 Parliamentary Question answer of 11 June 2012

271 Parliamentary Question answer of 11 June 2012

272 Parliamentary Question answer of 11 June 2012

273 Parliamentary Question answer of 11 June 2012

274 Parliamentary Question answer of 11 June 2012

275 Parliamentary Question answer of 2 July 2012

APPENDIX 1 – JHA PARLIAMENTARY QUESTIONS BY CATEGORY

Parliamentary Questions are listed in numerical order in each category.

Category 1: EU legislation benefits the UK and requires legislation

Document Number

Question

Response

1 and 8

How many cases of co- operation in the (a) investigation and (b) prosecution of fraud under the Convention on the protection of the European Communities’ financial interests there have been between the UK and other EU Member States in the last five years; and what assessment her Department has made of the effectiveness of the convention.

Co-operation between the UK authorities, other member states and the European Anti-fraud Office, OLAF, has been ongoing over the last five years. The Serious Fraud Office is currently handling two cases referred to it by OLAF, and assists with cases involving other member states as necessary.

The Government believe the current instrument in conjunction with various forms of voluntary co-operation provides an adequate basis for tackling fraud against the EU Budget.

What assessment her Department has made of the effect of liaison magistrates or officials operating under EU Council Joint Action 96/277/JHA on improving the effectiveness of judicial co-operation between EU Member States.

The Crown Prosecution Service is responsible for the posting and management of the UK liaison magistrates to France, Italy and Spain.

The experience of the Crown Prosecution Service is that the UK liaison magistrates have greatly enhanced bilateral judicial co- operation, including in complex transnational cases involving major criminality. Their involvement has often been instrumental in the successful conclusion of major investigations and prosecutions. The Home Office hosts liaison magistrates from France and Italy.

What assessment her Department has made of the (a) maintenance and (b) utility of the directory of specialised competences in counter-terrorism among national counter-terrorist agencies

established by EU Council Joint Action 96/610/JHA

This measure seeks to assist EU member states through a shared understanding of their respective specialised counter-terrorism competencies which might be made available to respond to requests for assistance received from other member states.

The Government continue to value our working-level cooperation with other EU member states to combat the threat from terrorism, and we continue to review the effectiveness of measures such as this.

How many Memoranda of Understanding have been established between UK

customs and business organisations

operating in the EU to combat drug

trafficking under the guidelines laid down in EU Council Joint Action 96/698/JHA; and what evaluation her Department has made of the effectiveness of such

memoranda.

12 memoranda of understanding broadly relating to customs-related matters have been concluded between HMRC and the former HM Customs and Excise and business organisations operating in the EU (mainly EU-based airlines and other freight and passenger carriers), the scope of which includes the combating of drug trafficking. Five of these MoUs were concluded after the adoption of EU Council Joint Action 96/698/JHA.

Although these MoUs were signed by HMRC/HMCE, they are principally applied by the UK Border Agency, which keeps their operation and coverage under review to ensure their continued effectiveness.

Document Number

Question

Response

How many drug profile results have been transmitted by UK forensic science laboratories to the Europol Drugs Unit under the terms of EU Council Joint Action 96/699/JHA in each of the last five years; and what assessment her Department has made of the effectiveness of that transfer system.

The Joint Action promotes the exchange of information relating to chemical profiling of drugs; facilitating interaction between Europol and member states through Europol National Units and liaison bureaux. The Serious Organised Crime Agency (SOCA) transmits this data on behalf of the UK forensic science laboratories. It forms part of the wider UK response to tackling drug trafficking, enabling evidential material relating to drug seizures to be maximised and strengthening our understanding of the UK drugs market through the more effective exchange of intelligence.

How the UK’s application and implementation of EU and other international acts and instruments in criminal matters has been assessed by the evaluation teams established by EU Joint Action 97/827/JHA; and what assessment her Department has made of the usefulness of that evaluation process.

To date, five evaluation rounds have been conducted and a sixth is currently planned. These are:

1. Mutual legal assistance in criminal matters—conducted from 1999 to 2001.

2. Law enforcement and its role in the fight against drug trafficking. This was initiated in 1999 and ended in 2003.

3. Exchange of information and intelligence between Europol and the member states and among the member states respectively. This was initiated in 2002 and the evaluation ended in 2007.

4. The European Arrest Warrant. This evaluation started in 2006, and ended in May 2009.

5. Financial crime and financial investigations. This was initiated in 2008. The final evaluation mission took place in the Czech Republic in December 2011.

The sixth round of evaluation is planned to be on the practical implementation and operation of the Decisions on Eurojust and the European Judicial Network in criminal matters. This round of evaluation is expected to be completed in 2014.

Typically, the process involves agreement on a questionnaire, which is then completed by the member state under evaluation. This is then followed by a short visit by a small team of representatives from selected other member states to, for example, conduct interviews with national experts. The process enables member states to share best practice and can also be an opportunity to detect any relevant weaknesses in implementation.

In general, the Government support the concept of peer evaluations to promote more effective working between member states in the fight against cross-border crime.

16 and 112

With reference to EU Council Joint Action 98/427/JHA, what assessment she has made of the effectiveness of the steps taken by the Government on statements of good practice in mutual legal assistance in criminal matters.

Many of the recommendations are standard in relation to the operation of MLA and the UK undertakes them as a matter of course.

Since the joint action was published in 1998 there have been numerous developments in the field of EU MLA with a view to improving the effectiveness of MLA and this is kept generally under review.

Document Number

Question

Response

How many requests to (a) identify and trace and (b) confiscate the proceeds of crime in accordance with Article 1 of EU Council Joint Action 98/699/JHA the Government (i) issued to and (ii) received from other EU member states in each of the last 10 years; and what evaluation she has made of the EU Joint Action’s effectiveness.

Information relating to requests to identify and trace the proceeds of crime is not held centrally. The UK central authority for criminal matters holds statistics for England, Wales and Northern Ireland in relation to mutual legal assistance requests. For requests to confiscate the proceeds of crime in relation to EU member states, the nformation is as follows:

Confiscation cases for EU countries by year

Incoming

Outgoing

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

With reference to EU Council Joint Action 98/700/EU, what assessment her Department has made of the (a) level of maintenance and (b) use of the European Image Archiving System.

The European Image Archiving System is now known as FADO (False and Authentic Documents On-Line). It is available on three levels: FADO for expert users only, iFADO an intranet version for control authorities and PRADO which contains strictly limited information for public use. FADO is well supported by the vast majority of EU member states, including the United Kingdom. Initial work concentrated on the uploading of EU identity documents only but efforts are now underway to include source documents also as well as non-EU documents. The system currently holds in excess of 1,500 documents and is available to the police and all Government Departments which have a need to verify identity documents.

The United Kingdom opted to implement a reverse proxy server solution to enable access to iFADO, which considerably simplifies the process. However, owing to the nature of the set-up it is difficult to say with any certainty how often FADO is accessed in the UK. Anecdotal evidence from the Border Agency, the police and other Government Departments confirms that it is used extensively.

Document Number

Question

Response

19 and 21

With reference to the EU Council Act of 3 December 1999 laying down the staff regulations applicable to Europol employees, how many former employees were in receipt of the monthly unemployment allowance established by Article 59 of the Act in each of the last five years; how many such recipients were granted the allowance on the basis of illness, accident, maternity, invalidity or a situation recognised as being comparable under Article 59(2) of the Act in each such year; what the total cost was of providing monthly unemployment allowance in each year; and what assessment she has made of Europol’s future pension liabilities.

The information requested is not held by the Government. Europol is responsible for keeping and managing its own personnel management records.

How many people have been temporarily transferred (a) to and (b) from the UK for the purposes of investigation under Article 9 of EU Council Act of 29 May 2000 (2000/C197/01) in each of the last 10 years.

The UK Central Authority (UKCA) within the Home Office deals with requests for temporary transfer of persons in custody for the purposes of criminal investigations only in relation to England, Wales and Northern Ireland. In the last 10 years there have been no such transfers under Article 9 of EU Council Act of 29 May 2000 (2000/C197/01).

How many requests to (a) intercept and transmit telecommunications and (b) intercept, record and transmit telecommunications under Article 18 of EU Council Act of 29 May 2000 (2000/C197/01) have UK authorities (i) made to and (ii) received from other EU member states in each of the last 10 years; and how many of those requests have been granted.

The Home Office records do not distinguish between requests coming within (a) or (b). The UK has not made any requests under Article 18. The following table shows the numbers or requests received and granted for each of the last 10 years:

Recieved

Granted

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

Which organisation serves as the UK’s Financial Intelligence Unit as mandated by EU Council Decision 2000/642/JHA of 17 October 2000; and on how many occasions in each of the last 10 years it has (a) requested information from another EU Member State’s financial intelligence unit regarding financial transactions related to money laundering or (b) been requested by another EU Member State’s financial intelligence unit to provide such information, in accordance with Article 1 of the EU Council Decision.

The Serious Organised Crime Agency (SOCA) serves as the UK’s Financial Intelligence Unit, a role it inherited from the National Criminal Intelligence Service (NCIS).

Prior to 2009, this data was not collated for publication. Information since 2009, which is published in the Suspicious Activity Reports (SARs) annual report, is as follows:

Incoming requests from EU FIUs

2009: 687

2010: 506

Up to 30 September 2011: 419.

Outgoing requests from SOCA to EU FIUs

2009: 575

2010: 639

Up to 30 September 2011: 534.

Document Number

Question

Response

With reference to EU Council Act 2001/C 326/01 of 16 October 2001, on how many occasions in each year since 2002 the UK authorities have (a) issued and (b) received requests to (i) provide information on a bank account pursuant to Article 1 of the Act, (ii) provide information on banking transactions pursuant to Article 2 of the Act and (iii) monitor banking transactions under Article 3 of the Act; and how many of each type of request have been granted.

Outgoing requests under EU Council Act 2001/C 326/01 of 16 October 2001 are issued directly by UK prosecution agencies and other judicial authorities and are not recorded by the Home Office. The UK Central Authority (UKCA) within the Home Office deals with incoming requests only in relation to England, Wales and Northern Ireland. Articles 1-3 of EU Council Act 2001/C 326/01 of 16 October 2001 are not the exclusive means by which member states may request banking information. The UKCA records do not distinguish between requests made under EU Council Act 2001/C 326/01 of 16 October 2001 and those made on any other valid basis and neither do they distinguish between requests for (i) and (ii). No requests have been received for (iii) although they may not have been separately recorded if made alongside a request for (i) and/or (ii).

With reference to Article 3 of EU Council Framework Decision 2002/187/JHA of 28 February 2002, on how many occasions in each of the last 10 years Eurojust has assisted (a) an investigation and (b) a prosecution involving a crime committed in the United Kingdom.

The information requested is not held centrally. However, UK competent authorities sought assistance from Eurojust in 644 criminal cases between 2001 and 2011. The majority of these cases involved conduct in the UK, although some involved conduct in other member states where the UK had a direct interest either in the suspect or the impact of the activity. The UK national desk has also dealt with 1,344 requests opened by other member states. A proportion of those cases will also have involved criminality in the UK.

How many joint investigation teams have been established in accordance with Article 13 of the Convention on Mutual Assistance in Criminal Matters between the member states of the European Union and Council Framework Decision 2002/465/JHA across the EU in each year since 2003.

The data requested are not centrally held. However, from information provided by Eurojust, which supports the establishment and operation of EU joint investigation teams, at least 53 joint investigation teams were in operation in European Union member states in 2011 (33 from support/assistance requested from Eurojust, eight from notifications to Eurojust, 12 from previous years). The UK has been involved in 14 joint investigation teams since 2009.

Joint investigation teams have proved a valuable means of enhancing practical cooperation between EU member states in addressing cross-border crime.

The most frequent types of criminal activity addressed by these joint investigation teams spanning the period October 2010 to October 2011 are: drug trafficking, trafficking in human beings, illegal immigration, fraud, money laundering, vehicle crime and cybercrime.

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Question

Response

With reference to EU Council Decision 2002/494/JHA of 13 June 2002, what the UK contact point is for the exchange of information concerning the investigation of genocide, crimes against humanity and war crimes; on how many occasions since 2002 that contact point has been requested to provide available information under Article 2(1) of the Decision; and what assessment her Department has made of the Decision’s effectiveness.

For the purposes of Article 1 of the Council Decision 2002/494/JHA (setting up a European network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes) the UK has notified the General Secretariat of the Council of three contact points; the Serious Organised Crime Agency, Metropolitan police, and Crown Prosecution Service Special Crime and Counter Terrorism Division. Through this network UK contact points have attended a number of meetings and presentations in which information regarding genocide, crimes against humanity and war crimes has been shared among contact points. There is no centrally held record for the number of times the contact points have had a request for information.

How many requests for the surrender of an individual under a European Arrest Warrant were received by the Serious Organised Crime Agency in 2010-11

NB: for statistics on the number of EAWs received by the UK in previous years, see the Parliamentary Joint Committee on Human Rights, Fifteenth Report of session 2010-12, p. 40

In 2010-11, SOCA received 6,032 Part 1 European Arrest Warrant requests (relating to individuals who are in the UK) and 256 Part 3 warrants (relating to individuals wanted by the UK).

Member states will often issue an EAW to all other member states when the location of the individual sought is not known. The number of requests received, therefore, is not necessarily an indicator of those individuals being in the UK.

How many requests for the surrender of an individual under a European arrest warrant were received by the Serious and Organised Crime Agency in 2011-12.

During the business year 2011-12, the Serious Organised Crime Agency received 5,832 European arrest warrants issued by EU member states —this figure includes four issued by Gibraltar.

With reference to EU Council Decision 2002/996/JHA of 28 November 2002, how many evaluation teams established under Article 4 of the Decision have conducted evaluations in the UK in each year since 2003; and what evaluation they have made of the UK’s arrangements to combat terrorism.

Two peer evaluations have been carried out in the UK as part of wider evaluations of member states, the first from June 2003 to May 2005 and the second from August 2007 to November 2009. Copies of the two final reports are available on the Council of the European Union website at the following links:

http://register.consilium.eu.int/pdf/en/0 5/st12/st12168-re03.en05.pdf

http://register.consilium.europa.eu/pdf/ en/10/st08/st08568.en10.pdf

Copies of the documents have also been placed in the House Libraries.

What assessment she has made of the effectiveness of liaison officers operating under EU Council Decision 2003/170/JHA of 27 February 2003; and how many such liaison officers the UK (a) sent to and (b) hosted from other EU Member States in each year since 2003.

UK Law Enforcement Agencies collaborate closely with a number of EU member states in the fight against organised crime in various global locations. This collaboration is consistent with EU Council Decision 2003/170/JHA. For operational reasons, law enforcement agencies do not publish details of liaison officer numbers in specific locations.

Document Number

Question

Response

With reference to Article 5 of EU Council Decision 2004/919/EC, what the UK contact point is for tackling cross-border vehicle crime; and on how many occasions it has exchanged information with the contact points of other EU member states on methods and best practices of preventing vehicle crime in each year since 2005.

Between 2007 and April 2011, a representative of the Association of Chief Police Officers’ Vehicle Crime Intelligence Service (AVCIS) attended twice-yearly meetings with European counterparts, and AVCIS participated in four joint operations.

With reference to Article 4 of EU Council Framework Decision 2005/214/JHA, how many final decisions requiring a financial penalty to be paid by a natural or legal person the UK has (a) transmitted to and (b) received from other EU member states in each year since 2005; and how many such decisions were enforced.

The provisions of EU Council Framework Decision 2005/214/JHA of 24 February 2005 were implemented into England, Wales and Northern Ireland law in 2009, through the Criminal Justice and Immigration Act 2008. There was a minor amendment made through the Criminal Procedure Rules 2011.

The first cases to be sent to and received from member states were in 2010.

Number of cases transmitted to other EU member states

Number of cases received from other EU member states

Incoming cases paid

in full

Number of

incoming

cases remitted

2010

2011

175

2012

—

The difference in the overall numbers of incoming orders and the above will be those that were rejected and returned back to the member states.

On how many occasions in each of the last five years the Europol National Unit or its representative in the Reitox network has provided information on the manufacture, trafficking and use of new psychoactive substances to Europol and the European Monitoring Centre on Drugs and Drug Addiction pursuant to Article 4 of EU Council Decision 2005/387/JHA.

The information requested is not collated centrally by the Europol National Unit (which is based in the Serious Organised Crime Agency).

Between 2007 and 2011, the Reitox network’s Focal Point for the United Kingdom, which is based in the Department of Health, formally notified 37 New Psychoactive Substances to the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA). The EMCDDA’s annual implementation report lists the New Psychoactive Substances notified that year, and the countries identifying them at:

http://www.emcdda.europa.eu/publicati ons/searchresults? action=list&type=PUBLICATIONS&SERI ES_PUB=a104

To ask the Secretary of State for the Home Department what assessment her Department has made of the likely benefits for the UK of EU Council Decision 2006/560/JHA on the common use of liaison officers posted abroad by law enforcement agencies of the member states.

Document Number

Question

Response

How many police officers from England and Wales have trained at the European Police College in each year since 2006; and what estimate she has made of the cost to the public purse of such training in each such year.

The figures for police officers from England and Wales trained at the European Police College are as follows:

Number

2006

2007

101

2008

105

2009

100

2010

2011

2012

We cannot provide figures in relation to estimated cost to the public as these data are not held centrally.

What assessment she has made of the effectiveness of EU Council Decision 2009/426/JHA on strengthening Eurojust.

The UK must decide, no later than 31 May 2014, whether to accept full European Court of Justice jurisdiction over those EU police and criminal justice measures adopted before 1 December 2009 which have not been amended or replaced. This measure, EU Council Decision 2009/426/JHA on strengthening Eurojust, falls within the scope of that decision and will be reviewed accordingly.

How many individuals sentenced to jail in the UK were transferred to serve their sentences in other EU member states in each year since 2009 under the terms of EU Council Framework Decision 2008/909/JHA; and how many individuals sentenced to jail in other EU member states were transferred to serve their sentence in the UK under that decision in each year since 2009

Council Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union was adopted on 27 November 2008. It entered into force on 5 December 2011. To date nine member states including the United Kingdom have implemented the framework decision. No prisoners have yet been transferred into or out of the United Kingdom under this arrangement.

What estimate she has made of the cost of the European Judicial Network to the UK; and what assessment she has made of its effectiveness.

The European Judicial Network (EJN) for criminal matters was created by Joint Action 98/428/JHA as a network of judicial contact points between EU member states. This Joint Action was repealed and replaced by Council Decision 2008/976/JHA, and this measure is the current basis for the EJN.

The UK must decide, no later than 31 May 2014, whether to accept full European Court of Justice jurisdiction over those EU police and criminal justice measures adopted before 1 December 2009 which have not been amended or replaced. Council Decision 2008/976/JHA therefore falls within the scope of that decision and will be reviewed accordingly.

Document Number

Question

Response

How many requests for information from the UK’s criminal records from other EU Member States have been made for purposes other than criminal proceedings under Article 6(1) of EU Council Framework Decision 2009/315/JHA in each year since 2009.

Council Framework Decision 2009/315/JHA was implemented on 27 April 2012. It replaced Council Decision 2005/876/JHA which had been brought into force in June 2006.

Since 27 April there have been 66 incoming requests for purposes other than criminal proceedings. Of these two referred to Government employment, seven were for firearms licenses and 57 were requests from individuals for their own criminal record. Many of these related to individuals who have lived in the UK and have since returned to their home country.

What assessment her Department has made of the effect of establishing the UK Central Authority for the Exchange of Criminal Records during the period between its establishment and April 2012

The work of the UK Central Authority for the Exchange of Criminal Records has four parts:

receiving, and placing on PNC, conviction notifications of Britons convicted in other EU member states; sending notifications of EU nationals convicted in the UK to their country of nationality; making requests to EU member states about their nationals being prosecuted in the UK; and replying to requests from other EU member states concerning UK nationals being prosecuted there.

All four areas have helped public protection. We now know, to a much greater extent than before, the history of offending by UK nationals abroad. As a result the police can take appropriate steps should that offending be serious, for example by placing the UK national on the Violent and Sexual Offenders Register (ViSOR). In addition any Criminal Records Bureau disclosure on a British national will include more information about their EU offending than was previously the case.

The numbers of EU nationals being convicted in the UK has given the police a much clearer picture of the extent of EU offending in the UK and will also have ensured that EU member states have a fuller picture of offending by their nationals in the UK.

The ability to obtain previous convictions of EU nationals being prosecuted here has increased the fairness of the prosecution process in the UK, by allowing information that was previously unavailable to be taken into account by the courts, prosecutors and the police.

Providing previous convictions of UK nationals to other EU member states has enabled their courts and prosecutors to have a much fuller picture of previous offending by UK nationals.

How many requests to (a) initiate, (b) conduct and (c) co-ordinate investigations the UK received from Europol pursuant to Article 7 of EU Council Decision 2009/371/JHA in each year since 2009; and how many of those requests resulted in an investigation.

Records of the information requested are not held centrally.

Document Number

Question

Response

104

What information her Department holds on the number of UK nationals who have their personal data held by Europol.

The Europol National Unit (ENU), based in SOCA International, does not have information on how many UK nationals have their personal data held by Europol. Personal data is submitted to Europol by law enforcement agencies of the 27 EU member states and eight third party countries. The ENU does not have access to the information submitted by other parties but would have access to personal data on UK nationals that it has placed on the system itself. We are not able to provide a figure for the number of UK nationals whose personal data has been inputted to Europol by the UK; Europol data systems are not configured to provide this data by nationality.

105 and 106

What steps her Department takes to check the sharing of the personal data of UK nationals by Europol with the third states and organisations listed in EU Council Decisions 2009/935/JHA and 2009/936/JHA.

Europol databases are governed by handling codes. When personal data are inputted to Europol, the owner of the data (which will be the competent law enforcement agency of a member state) specifies a handling code which dictates to whom the information can be disseminated. The member state can therefore state whether or not the data may be shared with other states. Europol has internal controls to monitor compliance with these handling codes.

108

On how many occasions the UK has (a) informed and (b) been informed by the Europol Security Coordinator of a data breach under Article 3(2) of EU Council Decision 2009/968/JHA in each year since 2010; and what action resulted from those breaches

Since 2010 the UK has not:

(a) informed the Europol Security Coordinator or other party of a data breach under Article 3(2) of EU Council Decision 2009/968/JHA.

(b) been informed by the Europol Security Coordinator or other party of a data breach under Article 3(2) of EU Council Decision 2009/968/JHA.

110 and 111

What assessment her Department has (a) made and (b) published (1) on the potential benefits to the UK of involvement in aspects of the system.

The UK partially participates in the Schengen acquis, with the primary purpose of connecting in due course, to the second generation of the Schengen Information System (SIS II). The UK also participates in Schengen activities where drug and arms trafficking are involved. There are no plans for the UK to join those elements of Schengen pertaining to border controls.

Document Number

Question

Response

114-118

On what basis the decisions (a) SCH/Com-ex (98) 26 def, (b) SCH/Com-ex (98) 52, (c) SCH/Com-ex (99) 6, (d) SCH/Com-ex (99) 7 rev. 2 and (e) SCH/Com-ex (99) 8 rev.2 were included in Annex A of her letter of 21 December 2011 to the Chair of the European Scrutiny Committee; and how they relate to the UK.

The measures cited were included in Annex A of my letter of 21 December 2011 to the Chair of the European Scrutiny Committee as they are:

“acts of the Union in the field of police and judicial co-operation in criminal matters which have been adopted before the entry into force of the Lisbon Treaty”

(Article 10(1) of Protocol 10 to the Treaty on the Functioning of the European Union). This means that all “acts” with a legal base in the former Title VI (police and judicial co-operation in criminal matters) of the Treaty of the European Union (TEU) are caught by this transitional provision.

In order to incorporate the Schengen acquis into EU law, the Council was required in 1999 to allocate a legal base in the Treaties for each provision which formed part of the acquis. A large number of the legal bases allocated were in Title VI TEU. This was the case for each measure cited.

In 2000, the UK joined elements of the Schengen acquis that relate to police and judicial co-operation (Council Decision 2000/365/EC) and has subsequently participated in measures that were deemed to build upon the parts of the acquis in which the UK participates. These Schengen measures in the field of police and judicial co- operation are therefore caught by the wording of the Transitional Protocol and properly included in the list of measures subject to the decision on whether to accept the application of full European Court of Justice jurisdiction in 2014.

119

To what extent the UK participates in EU decision SCH/Com-ex (99) 11 rev.2 on co-operation in proceedings for road traffic offences; and what assessment he has made of the effect of any such participation on the prosecution of road traffic offences in the UK

The UK participates in this EU decision, and has implemented it in so far as we have implemented Framework Decision 2005/214/JHA which in part supersedes it. The UK must decide, no later than 31 May 2014, whether to accept full European Court of Justice jurisdiction over those EU police and criminal justice measures adopted before 1 December 2009 which have not been amended or replaced. This instrument falls within the scope of this decision and is being reviewed accordingly.

120 and 122

(1) What assessment her Department has made of the effect on the UK of EU Council Decision 2004/849/EC; and

(2) what assessment she has made of the consequences for the UK of its decision to participate in EU Council Decision 2000/586/JHA.

Both of these measures, Council Decision 2004/849/EC and Council Decision 2000/586/JHA, are on the list of 133 notified to Parliament on 21 December 2011 as part of the decision to be made on whether we accept European Court of Justice jurisdiction for pre-Lisbon police and criminal justice measures in 2014. These measures will be reviewed accordingly.

Document Number

Question

Response

121

With reference to the amendment to Article 40 of the Schengen Agreement implemented by Article 1(i) of EU Council Decision 2003/725/JHA, on how many occasions the UK has conducted cross-border surveillance in another EU member state since 2003; and on how many occasions another EU member state has been authorised to carry out such surveillance in the UK.

The Serious Organised Crime Agency has collected data on requests for authority to continue surveillance into foreign jurisdictions under article 40 of the Schengen convention since 2008. In that time the UK has made 154 such requests and received five requests from other member states.

The figures do not represent the number of occasions that UK law enforcement actually conducted surveillance on foreign soil because such requests for continued surveillance are often facilitated by the receiving country, eliminating the need for UK law enforcement to travel. Of the five requests the UK has received from other member states, all were conducted by UK authorities rather than the requesting member state.

123

What evaluation her Department (a) made and (b) published regarding the effects in the UK of EU Council Decision 2005/211/JHA.

EU Council Decision 2005/211/JHA applies only to the current Schengen Information System (SIS 1). The United Kingdom has not connected to SIS 1 and has no plans to do so.

124, 125, 126

These instruments only apply to the current Schengen Information System (SIS 1). The United Kingdom has not implemented SIS 1 and has no plans to do so.

127

Whether the UK adopted the technical specifications to support the second generation Schengen Information System set out in EU Council Decision 2007/171/EC.

EU Commission Decision 2007/171/EC has no practical impact on the United Kingdom’s national second generation Schengen Information System (SIS II) implementation programme although it is in our interest to ensure that the capacity and performance of the SIS II network is adequate for operational requirements. We have therefore participated in the regulatory committee which debated and agreed the network requirements set out in the Commission Decision.

128

How many alerts under the second generation Schengen Information System for (a) persons wanted for arrest for surrender purposes on the basis of a European Arrest Warrant, (b) missing persons, (c) persons sought to assist with a judicial procedure and (d) objects for seizure or use as evidence in criminal proceedings were (i) issued and (ii) received by the UK authorities in each year since 2008.

None. The second generation Schengen Information System (SIS II) is not yet operational.

129

With reference to EU Council Decision 2008/173/EC, whether the tests of the second generation Schengen Information System the decision provides for were successfully completed by the UK authorities

EU Council Decision 2008/173/EC only applies directly to member states already participating in the current Schengen Information System (SIS 1) and migrating to SIS II. The United Kingdom therefore does not have to participate in these tests.

Document Number

Question

Response

130

With reference to EU Council Decision 2008/334/JHA, whether the UK has fully adopted the SIRENE manual and other implementing measures for the second generation Schengen Information System.

The UK has adopted EU Commission Decision 2008/334/JHA adopting the SIRENE manual and other implementing measures for the second generation Schengen Information System. However as the second generation Schengen Information System is not yet in operation adoption of the Decision has not required the UK or any other member state to take practical measures in relation to the Commission Decision.

Between the adoption of this decision and the present, changes have been suggested to the SIRENE manual and other implementing measures for the second generation Schengen Information System to reflect the operational needs of end-users and staff involved in SIRENE operations better, to improve consistency of working procedures and ensure that technical rules are compliant. The European Commission is therefore drafting new legislation which will repeal and replace EU Commission Decision 2008/334/JHA of 4 March 2008.

131

What contribution the UK will pay to cover its share of the operating costs of the Schengen Information System in 2012

The UK has currently budgeted to contribute £2.2 million towards the operating costs of the Schengen Information System in 2012.

132

With reference to EU Council Decision 2008/149/JHA, what assessment her Department has made of the effects of the involvement of the Swiss Confederation with the Schengen acquis.

This measure is on the list of 133 notified to Parliament on 21 December 2011 as part of the decision to be made on whether we accept European Court of Justice jurisdiction for pre-Lisbon police and criminal justice measures in 2014. This measure will be reviewed accordingly.

133

With reference to EU Council Decision 2009/724/JHA, whether the second generation Schengen Information System is now in operation.

The second generation Schengen Information System (SIS II) is not yet in operation. The European Commission plan to have the central SIS II system ready for operation by the end of the first quarter of 2013.

135

Council Decision 2008/852/JHA on a contact point network against corruption

N/A. Measure disclosed on 15 October 2012.

Category 2: Measures aimed at EU legislative harmonisation

Document Number

Question

Response

With reference to EU Council Decision 1999/615/JHA, whether 4- MTA is subject to control measures and criminal penalties in the UK.

In 2001, the UK brought 4-MTA and a number of phenethylamine derivatives under the Misuse of Drugs Act 1971, as class A drugs. Since then the possession, supply and production of 4-MTA has been prohibited, unless under lawful authority, and attract class A criminal penalties.

Document Number

Question

Response

What assessment she has made of the UK’s compliance with EU Council Decision 2000/375/JHA of 29 May 2000 to combat child pornography on the internet.

We believe that the UK is fully compliant with the Council Decision. The UK must decide, no later than 31 May 2014, whether to accept full European Court of Justice jurisdiction over those EU police and criminal justice measures adopted before 1 December 2009 which have not been amended or replaced. This measure falls within the scope of that decision and will be reviewed accordingly.

The Government take child protection very seriously and strongly support the work of the Child Exploitation and Online Protection centre, the internet industry and the Internet Watch Foundation to tackle illegal images of child sexual abuse.

Whether the UK has enacted the provisions of EU council Framework Decision 2001/413/JHA of 28 May 2001, on combating fraud and counterfeiting of non-cash means of payment; and what evaluation has been made of the effectiveness of the Decision in the fight against fraud.

The provisions of EU council Framework Decision 2001/413/JHA of 28 May 2001 on combating fraud and counterfeiting of non-cash means of payment have been implemented in UK law.

The Government have not made any assessment of the effectiveness of the Framework Decision.

Whether the UK has enacted the provisions of EU Council Framework Decision 2001/383/JHA of 6 December 2001; and what assessment she has made of its effectiveness in combating fraud against the euro.

The provisions of EU Council Framework Decision 2001/383/JHA of 6 December on combating fraud against the euro have been implemented in UK law.

The Government have not made any assessment of the effectiveness of the Framework Decision.

Whether the UK has enacted the provisions of EU Council Framework Decision 2002/946/JHA of 28 November 2002.

The purpose of the Framework Decision is to create a penal regime to prevent the facilitation of unauthorised entry, transit and residence. Section 143 Nationality, Immigration and Asylum Act 2002 amended the Immigration Act 1971 to set out a penal regime for the following offences: assisting unlawful immigration to a member state (section 25); helping an asylum seeker to enter the United Kingdom (section 25A); and assisting entry to the United Kingdom in breach of deportation or exclusion order (section 25C).

What assessment she has made of the extent to which the UK has implemented the provisions of EU Council Framework Decision 2003/568/JHA of 22 July 2003; and what assessment she has made of its effectiveness in tackling corruption.

The provisions of EU Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector have been implemented in UK law.

The Government have not made any assessment of the effectiveness of the Framework Decision.

Whether the UK has fully enacted the provisions of EU Council Framework Decision 2004/757/JHA; and what assessment her Department has made of its effectiveness in combating illicit drug trafficking.

The mandatory elements of EU Council Framework Decision 2004/757/JHA which lays down the minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking has been fully transposed into UK law.

Document Number

Question

Response

Whether the UK has fully enacted the provisions of EU Council Decision 2005/222/JHA; and what assessment her Department has made of its effectiveness in tackling attacks against information systems.

The UK has enacted the provisions of the Decision mostly through existing domestic legislation such as the Computer Misuse Act. The UK did not apply the discretionary provision under Article 10 (1)(b) regarding extra-territorial jurisdiction (ETJ) by nationality.

With reference to EU Council Directive Decision 2008/206/JHA, whether 1- benzylpiperazine is subject to control measures and criminal provisions in the UK.

1-benzylpiperazine (BZP) became a controlled Class C drug under Schedule 2 (Part III) of the Misuse of Drugs Act 1971 on 23 December 2009, together with its related compounds by way of a generic definition provided by the Advisory Council on the Misuse of Drugs.

Whether the UK has implemented EU Council Framework Decision 2008/675/JHA

The EU Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the EU in the course of new criminal proceedings has been implemented. The Decision was implemented in England and Wales by the Coroners and Justice Act 2009.

Whether the UK has fully implemented EU Council Framework Decision 2008/913/JHA; and what assessment her Department has made of its effectiveness in combating racism and xenophobia

The UK Government fully complies with the provisions of the Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia through the use of existing domestic legislation and common law.

Although the UK has no specific criminal offences of publicly condoning, denying or grossly trivialising crimes of genocide; crimes against humanity; war crimes; and crimes against peace (as required in Article 1 (1) (c) and (d) of the Framework Decision), conduct of this type carried out in a manner likely to incite violence or hatred would be covered by existing offences.

While no formal assessment of the framework’s effectiveness has been undertaken, post-legislative scrutiny of the Racial and Religious Hatred Act was undertaken and is available from the Vote Office and at:

http://www.official- documents.gov.uk/document/cm81/8164/ 8164.pdf

Category 3: Data reveals minimal usage of EU legislation

Document Number

Question

Response

In how many international joint customs surveillance operations as provided for in EU Joint Action 97/372/JHA UK authorities have participated in each of the last five years; and what assessment her Department has made of the effectiveness of such operations.

There are no recorded instances of participating in international joint customs surveillance operations under the provisions of EU Joint Action 97/372/JHA.

Document Number

Question

Response

On how many occasions UK authorities have requested (a) technical or (b) operational assistance from the European Commission to facilitate an investigation into fraud, corruption or money laundering under Article 7 of the Second Protocol of the Convention on the protection of the European Communities’ financial interests in the last five years; and what assessment her Department has made of the effectiveness of that Protocol.

The UK has applied for funding to two EU programmes in the field of the protection of the financial interest of the EU: the Hercule programme aimed at combating cigarette smuggling and counterfeiting; and the Pericles programme aimed at protecting the euro against counterfeiting.

HM Treasury is not aware of any instance when UK authorities have asked for operational assistance from the European Commission.

With reference to the EU Council Act of 18 December 1997 drawing up the Convention on mutual assistance and co- operation between customs administrations, on how many occasions since 1998 (a) pursuing officers from another EU member state have continued their pursuit into UK territory without prior authorisation under Article 20 of the Convention, (b) customs officers from another EU member state have conducted covert investigations on UK territory under Article 23 of the Convention and (c) UK authorities have participated in joint special investigation teams under Article 24 of the Convention.

HMRC records show the number of occasions as follows:

(a)—nil

(b)—nil

(c)—nil

With reference to Article 3 of EU Council Act of 17 June 1998 drawing up the Convention on Driving Disqualification, how many notifications of a driving disqualification for a person disqualified in an EU member state other than that in which they normally reside the UK (a) issued to and (b) received from other EU member states in each of the last 10 years; and what assessment her Department has made of the Convention’s effectiveness.

Since January 2010, mutual recognition of driving disqualifications has existed between GB and the Republic of Ireland (ROI). To date, these are the only member states to have implemented the provisions.

Since the start, the Driver and Vehicle Licensing Agency has received 37 notifications of GB drivers disqualified in ROI and sent ROI six notifications of Irish licence holders being disqualified in GB. No assessment has been made of the effectiveness of the convention.

How many people worked for the Data Protection Secretariat established by EU Council Decision 2000/641/JHA of 17 October 2000 in each of the last 10 years.

As at 12 March 2012, there are three officials working for the Data Protection Secretariat. The total number of officials has been the same since the Secretariat was established in 2001.

With reference to EU Council Decision 2001/887/JHA of 6 December 2001, on the protection of the euro against counterfeiting, what organisation serves as the UK’s national analysis centre for counterfeit euro (a) notes and (b) coins; and on how many occasions that organisation has communicated the results of its analysis to Europol in accordance with Article 3 of the Council Decision in each of the last 10 years.

The National Analysis Centre (NAC) for euro notes is the Bank of England. The Coin National Analysis Centre (CNAC) for euro coins is at the UK National Central Office (NCO) for the Suppression of Counterfeit Currency, within SOCA. The results of analysis of counterfeit euro currency are submitted to the European Central Bank’s Counterfeit Monitoring System (CMS). Europol has access to this database and can review the results instantaneously. The NAC routinely submits analysis and information on discovered euro banknotes to the CMS. To date CNAC has not dealt with any cases of detected counterfeit euro coins and has not, therefore, communicated any analysis results to Europol via the CMS.

Document Number

Question

Response

With reference to Article 3 of EU Council Decision 2002/956/JHA of 28 November 2002, how many officials have been seconded (a) to and (b) from the UK as part of the EU network for the protection of public figures in each of the last 10 years; and what assessment her Department has made of the EU network’s effectiveness.

No officials have been seconded to or from the UK to the EU network for the protection of public figures. The UK must decide, no later than 31 May 2014, whether to accept full European Court of Justice jurisdiction over those EU police and criminal justice measures adopted before 1 December 2009 which have not been amended or replaced. This measure falls within the scope of that decision and will be reviewed accordingly.

How many freezing orders the UK (a) sent to and (b) received from other EU Member States under the procedure established by EU Council Framework Decision 2003/577/JHA of 22 July 2003 in each year since 2003; and how many such freezing orders were executed.

Council Framework Decision 2003/577/JHA establishes rules under which an EU member state recognises and executes in its territory a Freezing Order for property or evidence issued by the judicial authority of another EU member state in the framework of criminal proceedings. The UK Central Authority (UKCA) within the Home Office deals with incoming and outgoing Freezing Order requests in relation to England, Wales and Northern Ireland. To date, there have been no Freezing Order requests sent to member states, and four Freezing Order requests have been received from member states. Of these, one has been executed by the UK.

In what circumstances she envisages that the UK would request special intervention units from other EU member states to operate on UK soil.

The United Kingdom’s response to any incident will be individually tailored to the nature and scale of that incident.

Should we identify the need to seek the support of our allies in managing a crisis situation, we would of course do so.

What the UK’s financial contribution to the European Network for the Protection of Public Figures was in each of the last five years

The UK has not provided any financial contribution to the European Network for the Protection of Public Figures in the last five years.

100

How many (a) people and (b) UK nationals have had their data added to the EU Customs Information System by the UK authorities in each of the last five years; and on how many occasions the UK has been found liable for damage caused to a person through the use of the Customs Information System pursuant to Article 8(2) of EU Council Decision 2009/917/JHA in the last year for which figures are available.

HMRC has not entered any data on (a) people or (b) UK nationals to the Customs Information System database as operated under EU Council Decision 2009/917/JHA over the last five years. There have been no occasions when the UK has been liable for damage caused to a person through the use of the Customs Information System.

Category 4: Existing UK regime covers off EU legislation

Document Number

Question

Response

What assessment her Department has made of the success of the measures set out in EU Council Joint Action 96/750/JHA in combating illegal drug trafficking across the EU.

The EU Council Joint Action 96/750/JHA sets out a number of broad measures that the UK undertakes as a matter of course when combating the threats we face from drug trafficking.

This Government have made clear the value we place on working at a practical level with our EU partners to tackle these increasingly complex threats. We continue to review the effectiveness of our interventions to combat illegal drug trafficking.

Document Number

Question

Response

Whether the UK has introduced the measures required by Articles 3 to 9 of EU Council Framework Decision 2000/383/JHA. [Criminal penalties against Euro counterfeiting]

The Government consider that existing UK law meets the measures required by articles 3 to 9 of EU Council Framework Decision 2000/383/JHA without the need for amendment.

With reference to EU Council Decision 2002/188/JHA of 28 February 2002, whether paramethoxymethylamphet amine is subject to control measures and criminal penalties in the UK.

No action was required by the UK as PMMA has been controlled under the Misuse of Drugs Act 1971 as a Class A drug since 1977. The possession, supply and production of PMMA are therefore prohibited and, unless under lawful authority, attract Class A criminal penalties.

Whether the UK has enacted the provisions of EU Council Framework Decision 2002/475/JHA of 13 June 2002; and what evaluation her Department has made of the Decision’s effectiveness in combating terrorism.

The UK has a comprehensive range of terrorism offences which complied with most of the EU Council Framework Decision 2002/475/JHA when it came into force in June 2002.

With reference to EU Council Decision 2003/847/JHA of 27 November 2003, whether the drugs 2C-I, 2C-T-2, 2C- T-7 and TMA-2 are subject to control measures and criminal penalties in the UK.

No action was required by the UK as these have been controlled under the Misuse of Drugs Act 1971 as Class A drugs since 1977. The possession, supply and production of these drugs are therefore prohibited and, unless under lawful authority, attract Class A criminal penalties.

With reference to Article 3 of EU Council Common Position 2005/69/JHA, with how many EU member states the UK exchanges present and future passport data.

The Identity and Passport Service (IPS) does not share this data directly with any EU member state. The IPS provides lost and stolen passport data to Interpol via the Serious and Organised Crime Agency (SOCA) on a daily basis, to assist with the international policing of borders. This arrangement has been in place since 2004. In accordance with Article 3, SOCA only shares the information with other Interpol members that ensure an adequate level of protection. This data is set out in Article 2. Only the passport number, lost and stolen reference and issue date are provided.

Whether the UK has fully enacted the provisions of EU Council Framework Decision 2005/212/JHA; and what assessment her Department has made of its effectiveness in dealing with the confiscation of crime-related proceeds.

In respect of serious, habitual criminals, the Proceeds of Crime Act 2002 has an effective scheme for the confiscation, not only of the proceeds of an instant conviction, but also the entire illegitimate wealth derived from crime. This accords with the extended confiscation regime set down by this framework decision. Extended confiscation is an important aspect of our asset recovery regime and the Government continually review all tools available to them for seizing the proceeds of crime.

Whether the UK has fully implemented EU Council Framework Decision 2008/841/JHA; and what assessment her Department has made of its effectiveness against organised crime

The UK has a high standard of domestic legislation on tackling serious and organised crime and fulfils the standards set out in this instrument. The UK must decide, no later than 31 May 2014, whether to accept full European Court of Justice jurisdiction over those EU police and criminal justice measures adopted before 1 December 2009 which have not been amended or replaced. EU Council Framework Decision 2008/841/JHA falls within the scope of that decision and will be reviewed accordingly.

Document Number

Question

Response

What changes to UK anti- terrorism laws resulted from EU Council Framework Decision 2008/919/JHA.

The UK has a comprehensive range of terrorism offences. No changes have been made following the EU Council Framework Decision 2008/919/JHA.

What steps the Government has taken to ensure compliance with EU Council Framework Decision 2009/905/JHA in advance of the implementation deadline of 30 November 2012; and what the associated costs of such steps have been.

Framework decision 2009/905/JHA requires accreditation in relation to DNA profiles by 30 November 2013 and accreditation in relation to fingerprint data by 30 November 2015.

Forensic suppliers who process DNA samples to produce DNA profiles which are added to the National DNA Database are all already compliant with ISO 17025 and EU Council Framework Decision 2009/905/JHA. As a matter of practice, the standards required by Framework Decision 2009/905/JHA are also inserted into all commercial contracts awarded by police services in this area.

Police forces are working towards accreditation: 22 forces have submitted their applications to the UK Accreditation Service (UKAS): 12 have undertaken a UKAS pre assessment; and two have been recommended for accreditation in the mandated areas. This approach has received the endorsement and backing of the Association of Chief Police Officers (ACPO) and the Forensic Science Regulator.

The UK takes a comprehensive approach to the regulation of services in this field, including the publication of Codes of Practice and Conduct by the Forensic Science Regulator. It is not possible to disaggregate the costs relating to implementation of the Framework Decision from the wider costs of related work.

102

What changes to the UK-US extradition regime resulted from the entry into force of the Agreement on extradition between the European Union and the United States on 1 February 2010.

The main change to the extradition regime between the US and the UK following the entry into force of the EU- US Agreement on Extradition came about as a consequence of Article 5(2) of the Agreement, so that the requirement for requests from the UK to the US to be certified by an official of the US embassy no longer applied. Also, the transmission of additional case information directly between the Home Office and the US Department of Justice was formalised by way of Article 10. Other potential amendments did not change existing UK practice.

Category 5: No data to monitor impact of EU legislation/no assessment made

Document Number

Question

Response

How many EU officials were convicted of corruption offences in the UK in each of the last five years; and what assessment her Department has made of the effectiveness of the 1997 EU Convention designed to fight corruption involving officials of the European Union or national officials of member states of the European Union since its introduction.

It is not possible to identify from centrally held information whether, and if so, how many EU officials were convicted of corruption offences in the UK.

The Bribery Act 2010 ensures the UK meets EU standards.

No assessment has been made at national level about the overall effectiveness of the Convention.

On how many occasions the Government has (a) requested and (b) been requested to provide information about groups posing a threat to law and order and security pursuant to EU Joint Action 97/339/JHA in each of the last five years.

Data not centrally held.

With reference to EU Council Decision 2001/419/JHA of 28 May 2001, on the transmission of samples of controlled substances, who the UK’s national contact is for the transfer of samples of controlled substances under the Decision; and how many such transfers have occurred to and from the UK in each year since 2002.

The Home Office is the ‘named contact’ for the purposes of the transmission of samples of controlled substances under the EU Council Decision in December 2011. The information requested on transmission of samples of controlled drugs is not held centrally.

With reference to Article 4 of EU Council Framework Decision 2001/500/JHA of 26 June 2001, on money laundering and confiscation of proceeds of crime, how many requests for mutual assistance in asset identification, tracing, freezing, seizing and confiscation have been (a) received and (b) issued by the UK authorities in each year since 2002; and how many of those requests have been granted.

This information is not held centrally.

What assessment she has made of the effectiveness of EU Council Decision 2002/348/JHA of 25 April 2002 on improving security at international football matches.

With reference to EU Council Decision 2003/642/JHA, what assessment his Department has made of the likely benefits of applying the convention on the fight against corruption involving officials of the European Communities or officials of members states of the European Union to Gibraltar.

The Government have not made any assessment of the likely benefits of applying the convention on the fight against corruption involving officials of the European Communities or officials of member states of the European Union to Gibraltar.

Document Number

Question

Response

How many people who applied for residency in the UK have subsequently gone on to face prosecution for genocide, crimes against humanity or war crimes (a) in the UK, (b) in another EU Member State or (c) before an international criminal court since May 2003.

Information available centrally to the Ministry of Justice on defendants proceeded against, found guilty and sentenced for criminal offences in England and Wales is limited to the detail provided by the statutes under which proceedings are brought, but not all the specific circumstances of each case. From centrally held data it is not possible to separately identify a defendant’s immigration status or whether a defendant had previously applied for residency in the United Kingdom.

Information for Scotland and Northern Ireland are matters for the Scottish Executive and Northern Ireland Office respectively.

With reference to EU Council Decision 2005/511/JHA on protecting the euro against counterfeiting, what assessment she has made of the likely benefit to the UK of the designation of Europol as the central office for combating euro counterfeiting.

On how many occasions the Government has (a) issued and (b) received requests for judicial assistance and enforcement of judgements under Article 4 of EU Council Decision 2005/671/JHA in each year since 2006; and how many of such requests have been granted

We attach high importance to the exchange of information and co-operation in relation to terrorism offences however we do not record the name of the legal instrument under which such requests are issued and received.

What assessment she has made of the effectiveness of EU Council Framework Decision 2006/960/JHA in simplifying the exchange of information and intelligence between the member states of the EU.

The UK must decide, no later than 31 May 2014, whether to accept full European Court of Justice jurisdiction over those EU police and criminal justice measures adopted before 1 December 2009 which have not been amended or replaced. This measure, Council Framework Decision 2006/960/JHA, also referred to as the Swedish Initiative falls within the scope of that decision and will be reviewed accordingly.

What assessment she has made of the effectiveness of EU Council Decision 2007/412/JHA in improving security at football matches.

The UK must decide, no later than 31 May 2014, whether to accept full European Court of Justice jurisdiction over those EU police and criminal justice measures.

What assessment her Department has made of the effectiveness of EU Council Decision 2007/845/JHA in tracing and identifying the proceeds of crime.

The UK must decide, no later than 31 May 2014, whether to accept full European Court of Justice jurisdiction over those EU police and criminal justice measures adopted before 1 December 2009 which have not been amended or replaced. This measure, Council Decision 2007/845/JHA concerning cooperation between asset recovery offices of member states in tracing and identifying the proceeds of crime, falls within the scope of that decision and will be reviewed accordingly.

In each year since EU Council Framework Decision 2008/977/JHA came into force, how many data subjects in the UK have (a) requested the rectification, erasure or blocking of their personal data under Article 4 of the Decision and (b) received compensation for an unlawful processing operation under Article 19 of the Decision.

The information asked for, in parts (a) and (b), are held neither by the Ministry of Justice nor the Home Office centrally. Furthermore, the information is not held individually within the bodies covered by the scope of Framework Decision 2008/977/JHA.

Document Number

Question

Response

What assessment his Department has (a) made and (b) published of the effectiveness of EU Council Framework Decision 2009/299/JHA in improving mutual recognition of judicial decisions between EU Member States.

To date, the Government have neither made nor published any assessment of the effectiveness of EU Framework Decision 2009/299/JHA in improving mutual recognition of judicial decisions between member states. The UK must decide, no later than 31 May 2014, whether to accept full European Court of Justice jurisdiction over those EU police and criminal justice measures adopted before 1 December 2009 which have not been amended or replaced. This measure falls within the scope of that decision and will be reviewed accordingly.

How the European Crime Prevention Network established under EU Council Decision 2009/902/JHA interacts with the police forces of England and Wales; and what assessment her Department has made of its effectiveness.

It is not possible to quantify exactly the interaction by police forces in England and Wales in the activities of the European Crime Prevention Network (EUCPN) because those interactions take place primarily through police forces’ uploading information to a public access website.

101

How many joint investigation teams involving the UK and US authorities operated in the (a) UK and (b) US under Article 5 of the Agreement on mutual legal assistance between the European Union and the United States which entered into force on 1 February 2010, in each year since 2010.

The Home Office does not collate data centrally on the operations of joint investigation teams involving the UK and US authorities in the UK. We have no records of operations in the US.

101

How many requests for bank information the UK (a) issued to and (b) received from the US under Article 4 of the Agreement on mutual legal assistance between the EU and the US which entered into force on 1 February 2010 in each year since 2010; and how many such requests were granted.

The Home Office does not record this information.

Category 6: EU legislation has not (yet) been implemented by the UK

Document Number

Question

Response

How many confiscation orders have been (a) transmitted to and (b) received from other EU member states under EU Council Framework Decision 2006/783/JHA in each year since 2007.

The UK has not implemented this Framework Decision and so has not transmitted cases under its provisions. Statistics on the number of confiscation cases received from EU member states since 2007 are as follows:

Confiscation cases for EU countries by year

Incoming

2007

2008

2009

2010

2011

2012

It is not possible to identify the instrument under which these requests were made to the UK.

79 and 80

Since what date the UK has been exchanging data with other EU member states under the terms of the Prüm decision of 2008.

(EU 2008/615/JHA and EU 2008/616/JHA)

The United Kingdom has not yet implemented the Prüm Council Decisions. The reasons for this were set out in my letter of 9 November 2011 to the House of Commons European Scrutiny Committee.

As the United Kingdom has not implemented the Prüm Decisions it has not exchanged any data with other EU member states under their terms.

How many individuals subject to probation measures imposed in the UK have had their probation measures supervised by the authorities of another EU member state under the terms of EU Council Framework Decision 2008/947/JHA in each year since 2009; and how many individuals subject to probation measures imposed in other EU member states have had their probation measures supervised by the UK authorities under that decision in each year since 2009

To date, no offenders subject to community sentences imposed by courts in the United Kingdom have been supervised by the authorities of another EU member state; and no offenders sentenced in other EU member states have been supervised by authorities in the UK under the terms of Framework Decision 2008/947/JHA.

To what extent EU Council Decision 2008/978/JHA has been implemented in the UK.

The UK has not implemented Council Decision 2008/978/JHA (European evidence warrant). Implementation was suspended when the UK opted into the European Investigation Order (EIO) in July 2010.

The UK must decide, no later than 31 May 2014, whether to accept full European Court of Justice jurisdiction over those EU police and criminal justice measures adopted before 1 December 2009 which have not been amended or replaced. The European evidence warrant falls within the scope of that decision and will be reviewed accordingly.

Document Number

Question

Response

How many individuals subject to supervision measures imposed in the UK have had their supervision measures supervised by the authorities of another EU member state under the terms of EU Council Framework Decision 2009/829/JHA in each year since 2009; and how many individuals subject to supervision measures in other EU member states have had their supervision measures supervised by the UK authorities in each year since 2009

None: the EU Council Framework decision 2009/829/JHA on“the application between member states of the European Union of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention”, known as the European Supervision Order, is not due to be implemented until 1 December 2012.

107

On how many occasions in each year since 2010 a competent authority in the UK has (a) contacted and (b) been contacted by the competent authority in another EU member state regarding the belief that a parallel set of criminal proceedings is being conducted under Article 5 of EU Council Framework Decision 2009/948/JHA; and on how many occasions in each year it was necessary to refer the matter to Eurojust under Article 12(2) of the Decision

None. The Framework Decision has not yet been implemented.

Category 7: EU legislation has been superseded or has been replaced

Document Number

Question

Response

What assessment her Department has made of the (a) level of maintenance and (b) use of the directory of specialised competences, skills and expertise in the fight against crime established by Article 1 of EU Council Joint Action 96/747/JHA.

The financial cost of maintaining the directory (the Europol Knowledge Management Centre) has been borne by Europol. In recent years, online thematic expert platforms have emerged in parallel to facilitate expert engagement and have now superseded the directory, which closed on 16 February 2012.

With reference to the EU Council Decision of 27 March 2000 (2000/261/JHA), what assessment her Department has made of the (a) level of maintenance and (b) use of the system for exchanging information regarding false documents established by Article 1 of the Decision.

Council Decision 2000/261/JHA of March 2000

introduced a standard form and questionnaire for use when providing information alerts about counterfeit documents to other EU member states.

This followed on Joint Action 98/700/JHA of 3 December 1998 concerning the setting up of a European Image Archiving System (FADO). This system is a computerised archive containing images and textual information relating to falsified and authentic identity documents such as passports, identity cards, visas, residence permits and driving licenses. However it was recognised that it would be some years before FADO was fully functional and this standard form was designed to fill the gap until then.

FADO is now fully rolled out across the EU and this

system is therefore rarely used.

Document Number

Question

Response

Whether the UK has enacted all of the provisions of EU Council Framework Decision 2001/220/JHA; and what assessment her Department has made of its effectiveness in safeguarding victims’ rights.

The UK has implemented the Framework Decision through a combination of legislative and administrative measures. The requirements in the Framework Decision were a step towards enabling UK citizens to travel throughout the EU with the confidence that, should they fall victim to crime in any member state, their rights would be respected when participating in criminal proceedings and they would be able to access a minimum level of support.

However, I share the European Commission’s view that the objectives of the Framework Decision have not been fully realised. Last year the European Commission published a proposal for a directive of the European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime. The UK has opted in to this directive.

Council Framework Decision 2002/629/JHA on combating trafficking in human beings.

Replaced by EU Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims.

This replacement measure falls outside the scope of the UK opt-out.

Council Framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography.

Replaced by EU directive 2011/92/EU on combating the sexual abuse and sexual exploitation of children and child pornography.

This replacement measure falls outside the scope of the UK opt-out.

What assessment her Department has made of the effectiveness of the 2007 Agreement between the US and the EU on the processing and transfer of Passenger Name Record data in combating the threat of terrorism.

The exchange of passenger name record data has been a useful tool in combating the threat of terrorism. The 2007 EU-US PNR Agreement has now been superseded by the new Agreement concluded on 26 April 2012.

Council Decision 2008/651/CFSP/JHA on the signing, on behalf of the EU, of an Agreement between the EU and Australia on the processing and transfer of EU-sourced Passenger Name Record (PNR) data by air carriers to the Australian customs service.

Replaced by the Agreement between the EU and Australia on the processing and transfer of PNR data by air carriers to the Australian Customs and Border Protection Service, signed on 29 September 2011.

This replacement measure falls outside the scope of the UK opt-out.

113

To what extent the UK participates in EU decision number SCH/Com-ex (96) decl 6 rev 2 on extradition; and what assessment she has made of the effects for the UK of that decision.

The Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member states, by virtue of Article 31(e), replaces the extradition provisions (Title 3, Chapter 4) of the Schengen Acquis. The Acquis is the legal basis for this declaration so it is considered that this declaration has been superseded by the EAW FD—which is given effect by parts 1 and 3 of the Extradition Act.

Document Number

Question

Response

134

Council Decision 2003/169/JHA of 27 February 2003 determining which provisions of the 1995 Convention on simplified extradition procedures between the Member States of the European Union and of the 1996 Convention relating to extradition between the Member States of the European Union constitute developments of the Schengen acquis in accordance with the Agreement concerning the Republic of Iceland’s and the Kingdom of Norway’s association with the implementation, application and development of the Schengen acquis.

N/A. Measure disclosed on 15 October 2012.

Category 8: EU legislation does not affect the UK

Document Number

Question

Response

What assessment she has made of the likely benefits derived from the EU exchanging classified information with Bosnia and Herzegovina under the terms of EU Council Decision 2004/731/EC.

Given the United Kingdom’s desire for a stable and prosperous Bosnia and Herzegovina, moving towards EU membership, it is in the UK’s interest for there to be greater co-operation between the EU and the

Government of Bosnia and Herzegovina. A closer

relationship, particularly as Bosnia and Herzegovina moves along its path towards the EU, will require increased sharing of information. This agreement acts to ensure that such information is correctly protected and properly secured.

What assessment she has made of the likely benefits derived from the EU exchanging classified information with Norway under the terms of EU Council Decision 2004/843/CFSP

Norway is a close and reliable partner on defence and security issues and is a member of NATO, the European Free Trade Agreement, the European economic area and Schengen. The implementation of this agreement further cements the UK’s close ties with Norway as well as the Norwegian relationship with the European Union.

Document Number

Question

Response

What assessment he has made of the likely benefits derived from the EU exchanging classified information with the Former Yugoslav Republic of Macedonia under the terms of EU Council Decision 2005/296/CFSP.

Given the United Kingdom’s desire for a stable and prosperous Macedonia, moving towards EU and NATO membership, it is in the UK’s interest for there to be greater co- operation between the EU and the Government of Macedonia. A closer relationship, particularly as Macedonia moves along the EU accession path, will require increased sharing of information. This agreement acts to ensure that such information is correctly protected and properly secured.

To ask the Secretary of State for Foreign and Commonwealth Affairs if he will assess the potential benefits to the UK resulting from EU Council Decision 2005/481/CFSP regarding the exchange of classified information with the Ukraine.

The UK supports Ukraine’s long-term aspiration to join the EU at the point when it meets the criteria as set out in article 49 of the treaty on European Union. The implementation of this agreement further cements Ukraine’s relationship with the European Union. The UK must decide, no later than 31 May 2014, whether to accept full European Court of Justice jurisdiction over those EU police and criminal justice measures adopted before 1 December 2009 which have not been amended or replaced. This measure falls within the scope of that decision and will be reviewed accordingly.

What assessment he has made of the likely benefits derived from the EU exchanging classified information with Croatia under the terms of EU Council Decision 2006/317/CFSP .

EU Council Decisions 2006/467/CFSP, 2006/317/CFSP and 2008/568/CFSP concern data sharing agreements between the EU and Iceland, Croatia and the Swiss Confederation, respectively. These Decisions establish rules for the sharing of sensitive information. An assessment of these Decisions was made by the then Government at the time of their adoption.

The UK must decide, no later than 31 May 2014, whether to accept full European Court of Justice jurisdiction over those EU police and criminal justice measures adopted before 1 December 2009 which have not been amended or replaced. This measure falls within the scope of that decision. Officials are undertaking a full analysis of all those measures, which will be reviewed carefully by Government.

Document Number

Question

Response

What assessment he has made of the likely benefits derived from the EU exchanging classified information with Iceland under the terms of EU Council Decision 2006/467/CFSP .

The UK must decide, no later than 31 May 2014, whether to accept full European Court of Justice jurisdiction over those EU police and criminal justice measures adopted before 1 December 2009 which have not been amended or replaced. This measure falls within the scope of that decision. Officials are undertaking a full analysis of all those measures, which will be reviewed carefully by Government.

What assessment he has made of the likely benefits derived from the EU exchanging classified information with the US under the terms of EU Council Decision 2007/274/JHA.

EU Council Decision 2007/274/JHA concerns a data sharing agreement between the EU and the United States. This Decision establishes rules for the sharing of sensitive information. An assessment of this Decision was made by the then Government at the time of its adoption.

What assessment he has made of the likely benefits derived from the EU exchanging classified information with the Swiss Confederation under the terms of EU Council Decision 2008/568/CFSP .

EU Council Decisions 2006/467/CFSP, 2006/317/CFSP and 2008/568/CFSP concern data sharing agreements between the EU and Iceland, Croatia and the Swiss

Confederation, respectively. These Decisions

establish rules for the sharing of sensitive information. An assessment of these Decisions was made by the then Government at the time of their adoption. The UK must decide, no later than 31 May 2014, whether to accept full European Court of Justice jurisdiction over those EU police and criminal justice measures adopted before 1 December 2009 which have not been amended or replaced. This measure falls within the scope of that decision. Officials are undertaking a full analysis of all those measures, which will be reviewed carefully by Government.

103

What assessment her Department has made of the effect of the decision to extend the scope of EU Council Decision 2009/933/CFSP to cover the Netherlands Antilles and Aruba.

The Home Office has made no assessment of this Council Decision, which merely extends the Agreement on Extradition between the European Union and the United States of America to the Netherland Antilles and Aruba.

This Council Decision has no effect on extradition

between the UK and the US.

109

What assessment he has made of the likely benefits derived from the EU exchanging classified information with the US under the terms of EU Council Decision 2007/274/JHA.

[The answer to this question goes on to refer to document 109: council decision 2010/348/EC]

The UK must decide, no later than 31 May 2014, whether to accept full European Court of Justice jurisdiction over those EU police and criminal justice measures adopted before 1 December 2009 that have not been amended or replaced. All of the aforementioned measures fall within the scope of that decision. Officials are undertaking a full analysis of all those measures, which will be reviewed carefully by Government.

There are a number of similar data sharing agreements between the EU and third countries which are in the table.

…

200 Russian Federation

(Council Decision 9 2010/348/EC of 17 November 2009)

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