The UK in the EU

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The EU Crime and Justice Policy

The Justice & Home Affairs Work Programme

The Amsterdam Treaty 1997 brought the issues of asylum, immigration, frontiers, visas and judicial co-operation into the Treaty on European Union. The Treaty was accompanied by two protocols that recognise the right of the UK (and Ireland) to exercise their own frontier controls and which enable the UK and Ireland to decide whether to participate in any developments in this area.

The first five-year JHA programme having been completed in 2004, the European Commission published a review of achievements and made suggestions for a new programme for the next five years. Ministers adopted "The Hague Programme" setting out their aims in the field of JHA in November 2004. It is important to note that this programme is a political statement; any measures arising from it will have to go through the full EU legislative process. The UK will continue to opt out of some measures, usually those concerned with legal migration and other aspects of border controls.

Police Co-operation

Europol, the police co-operation agency, gathers intelligence on organised crime and now produces an annual threat assessment for Member States. This threat assessment highlights the dangers to the EU from organised crime and suggests ways Member States can help to tackle it.

Europol is extensively involved in co-operation to put a stop to people trafficking and in the fight against organised crime.

A European Police Training College has been created at the British police college in Bramshill. The College is training police officers in how the various co-operation systems work so that they can tackle cross-border crime more effectively.

There is a considerable amount of sharing of practice between professionals involved in fighting crime and terrorism. This does not necessarily generate legislation but is regarded by the professionals as immensely valuable. We can learn from the ideas that police and security agencies have in other Member States.

It is sometimes suggested that Europol is on the way to becoming a "European FBI". This is to misunderstand the powers and purpose of the organisation. It does not have operational powers of the kind that the FBI has. Europol works through police officers seconded to it by Member States who act as liaison officers; it has no powers of arrest or investigation itself.

European Arrest Warrant

The European Arrest Warrant was created so that there will normally be direct enforcement by a judge in one Member State of a warrant for arrest issued by the judicial authority of another member state. An EAW may be issued for any offence punishable by the law of the issuing state with a maximum sentence of 12 months or more, or, where the person has already been sentenced, provided it is a sentence of at least four months imprisonment.

Between 1 January 2004, when the EAW scheme came into force, and 22 February 2006, 175 arrests were carried out in the UK as a result of European Arrest Warrants and at least 90 arrests at our request occurred in other EU countries. A suspect wanted in connection with the attempted 21 July 2005 London bombings was extradited from Italy using an EAW in September 2005. The average time taken to extradite a suspect has fallen from over nine months to 45 days since the EAW was introduced.

Extradition law traditionally imposed a requirement of ‘double criminality’, i.e. that the requested state need not render the accused unless the offence with which he was charged in the requesting state was also an offence in the country where the accused person is now living. The Decision does not do this but instead lists a range of serious offences, including terrorism and connected offences, illicit trafficking in drugs or weapons, corruption and fraud, murder, kidnapping and hostage-taking. For offences in these categories, as defined by the law of the country issuing the arrest warrant, the requirement of double criminality is abolished if they are punishable by imprisonment for at least 3 years. For criminal offences other than those specifically listed in the EU Framework Decision, the double criminality rule still applies.

Safeguards for the Accused

The Decision contains a number of safeguards for the accused. It states that it respects fundamental rights and observes the principles of liberty, democracy and respect for human rights and fundamental freedoms recognised by Article 6 of the Treaty on European Union.

The Decision allows a Member State to refuse to surrender a person on the grounds of gender, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation. Moreover, the Decision does not "prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media".

The Decision requires the requested state to keep the accused informed of the EAW and the proceedings flowing from it, and to give him legal counsel and, if necessary, an interpreter. Unless he or she consents to being surrendered, the accused is entitled to be heard by the executing judicial authority.

The European Arrest Warrant makes for a faster and smoother process, whilst retaining the key safeguards that protect the rights of the accused.

European Evidence Warrant

The Council of Ministers reached agreement in principle on the European Evidence Warrant in June 2006 but the necessary legislation has not yet been agreed. The warrants will allow a police force in one Member State to seek evidence from another Member State’s police if the offence is one of 32 offences recognised by all Member States (including terrorism, rape, human trafficking and other serious offences). The crucial breakthrough made by the warrant is that the judicial authorities in one Member State will have to recognise the evidence warrant issued by another Member State’s authorities with only limited grounds for refusal. This will speed up the criminal justice system in crossborder cases and make it harder for offenders to hide in another jurisdiction. It does however only apply to limited types of evidence – essentially documents – that the investigating authorities are aware of and it does not include DNA evidence. Safeguards against possible abuse of such warrants include – as with the European arrest warrant – a provision enabling the receiving country to decline to accept an evidence warrant on the grounds that the offence alleged was not an offence in that country.

It is already possible to request the freezing of evidence or assets and to enable asset freezing orders in one Member State to be recognised in another.

Civil & Criminal Justice Co-operation

During the debate on the European Arrest Warrant proposals, it was argued in the European Parliament and elsewhere that this new power for investigating authorities needed to be balanced by better rights for arrested suspects. The Commission proposed a ‘Rights for criminal suspects directive’ in 2004 which is still under negotiation. There are major difficulties over ensuring that any EU measure is compatible with the European Convention on Human Rights and there are objections from some countries (including the UK) who are unhappy at minimum rights for arrested persons being agreed at EU level (although the UK would not have to participate anyway because of its opt-out entitlement). The possible new rights would include the right to an interpreter and to proper legal advice.

A measure to enable debts acquired in one Member State to be pursued in another State – a European payments order – has been agreed. A further measure to allow small claims to be pursued across the EU has been agreed and is to come into force in 2009; this will enable, for example, consumers who have bought faulty goods while abroad to pursue the matter in their own country’s courts.

EU Drugs Strategy 2005-12

The European Council in December 2004 adopted an EU Drugs Strategy for 2005-12; the aim is to confront drugs use and trafficking. The Council adopted an Action Plan in June 2005 for implementing the strategy over the next three years. Eighty separate measures are included in the Action Plan, including strengthening co-operation between enforcement agencies in Member States, tackling money laundering and achieving a common definition of drug-related crime.

Criminal Offences and the European Community

In September 2005 the European Court of Justice clarified the making of criminal offences under European Community law. The EU maintains a division between European Community law, which largely covers economic, social and environmental policy, and European Union law which covers other policy areas, including crime and justice. Most decisions under European Community law can be decided by qualified majority voting in the Council of Ministers. The Court, in Case C-176/03 Commission and European Parliament v. Council, confirmed that "as a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s competence" but it also decided that the Community did have the power to create criminal offences in certain cases in order to ensure that common rules are "fully effective".

The European Commission has interpreted the judgment as giving the Community the power to make criminal offences when this is necessary to ensure that a Community law can be effectively enforced. The sorts of fields in which these would apply would be cross border offences including marine pollution, intellectual property, fraud and counterfeiting.

It is already the case that criminal sanctions are sometimes available for breaches of Community law; the UK can introduce such provisions through the European Communities Act 1972. The significance of the Commission’s interpretation is that, if it is correct, as Community legislation is generally agreed by QMV and not by unanimity, it would be possible for new criminal offences to be created without the consent of a Member States’ parliament or government.

There is, as yet, no agreement among Member States about what are the full effects of the Court of Justice’s ruling. A further ruling by the Court of Justice in October 2007 (C-440/05 Commission v Council), on a case relating to a proposed directive on ship-source pollution, reiterated that criminal law and criminal procedures are not normally within Community competence, that they can only be introduced where essential to ensure effective enforcement of environmental regulations and that the type and level of penalty can only be determined by Member States. The exact consequences of these rulings are hard to predict at present.

Key Points

· The EU is an effective forum for dealing with cross border crime and justice issues;

· The European Arrest Warrant has dramatically shortened extradition times in Europe;

· Police co-operation provides an opportunity to work together to tackle cross border crime like people smuggling and drug misuse while retaining national control of police services.

· Measures to deal with offences like money laundering are only really effective if agreed at EU level; nation states cannot tackle these sorts of problems alone.

April 2008

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