European Investigation Order:Update

www.JUSTICE.org.uk @JUSTICEhq

ECLA Seminar5th October 2015

Jodie BlackstockDirector of Criminal Justice JUSTICE

The tools of the JCHRAbout JUSTICE

JUSTICE is an all-party law reform and human rights organisation working to strengthen the justice system – administrative, civil and criminal – in the United Kingdom

Lawyer membersAll-party basisSeeking to• Inform debate• Frame issues• Influence decision

makers

Our vision is of fair, accessible and efficient legal processes, in which the individual’s rights are protected, and which reflect the country’s international reputation for upholding and promoting the rule of law.

The tools of the JCHR

• Research and innovation– In the Dock (2015)– Inside Police Custody (Intersentia, 2014)

• Westminster and Whitehall– Criminal Justice and Courts Act 2015– Counter-Terrorism and Security Act 2015

• Third party interventions– Belhaj [2014] EWCA Civ 1394– Nunn v Suffolk Constabulary [2014] UKSC 37

How JUSTICE works

DOMINIC RAAB: UK must opt out of this Kafkaesque web of injustice 

Are we citizens of the United Kingdom or the European Union? (Daily Telegraph)

We need to be part of Europe to prevent criminals from escaping justice (MIRROR)

European courts have nothing to offer UK, says justice secretary

• 35 pre-Lisbon measures• All stages of criminal justice process:

procedural, substantive, operational

• http://www.parliament.uk/business/committees/committees-a-z/lords-select/eu-home-affairs-sub-committee-f-/inquiries/parliament-2010/protocol-36-follow-up/

Does the UK do EU criminal justice?

Convictions

EU Procedural Measures

European arrest warrant

Transfer of prisoners Eurobail

EU Substantive Measures

Crown Copyright

Drug trafficking Human Trafficking

Child pornography Terrorism

EU Operational Measures

Crown Copyright

Europol Eurojust European Judicial Network

Ordinary Legislative Procedure

© S. Bertrand, FlickreviewR

© C. Puisney, Atlasowa

• Infringement proceedings brought by the European Commission in the CJEU

• Preliminary references to the Court of Justice of the European Union (CJEU)

The EIO from a procedural rights perspective

• Does the EIO demonstrate an evolution in rights protection?

• Can it solve (some of) the problems with the European arrest warrant (EAW)?

An evolution in rights protection?

• Language of rights – post Lisbon measure

• Procedural safeguards

• Grounds of refusal

• Legal remedies

Language of rights

• Recital 12:IA should pay particular attention to ensuring rights pursuant to article 48 CFR. Presumption of innocence and rights of defence are a cornerstone of FR. Any limitation must be in accordance with article 52 CR: necessary, proportionate, legitimate objectives

• Recital 18: standard para. on non-modification of rights BUT operative provision in text

Procedural Safeguards

• Article 2(c)(ii) – validation by judicial authority• Article 6 – conditions for issuing and transmission-

IS may only issue where: (a) necessary and proportionate taking into account rights of suspected or accused person(b) the measure could have been ordered in the IS

• Article 10(3) – ES recourse to a different measure if same result can be achieved through less intrusive means

• Article 11(4) – consultation about grounds for refusal• Article 13(2) - suspension of transfer of evidence

pending a decision on a legal remedy• Article 14(3) - shall ensure information is provided about

mechanisms to seek legal remedies, where it would not undermine confidentiality of investigation

• Article 20 – Protection of personal data

Grounds of refusal

Article 11 – ES may refuse where:(a)Immunity or privilege(b)National security or intelligence activities(c)For ‘administrative’ offences in the ES the

measure could not be applied(d)Ne bis in idem(e)Terrritoriality(f)Incompatible with article 6 TEU and

CFR(g)Double criminality(h)Measure is restricted to category

excluding this offence (unless article 10(2) applies)

Legal Remedies

• Article 14(1) MS must ensure remedies equivalent to available in a domestic case are available

(2) substantive reasons can only be challenged in IS (subject to guarantees of fundamental rights available in ES)

(6) Shall not suspend execution, unless would do so domestically

(7) IS shall take into account a successful challenge. Shall ensure the rights of the defence and fairness of proceedings are respected when assessing evidence

• How will this operate in practice? Will it be effective?• Is it to invoke a ground of refusal or something else?• NB – there is otherwise no right to a hearing specified

Solving problems of the EAW

• Proportionality• Issue prior to ‘criminal prosecution’• Detention pre-trial for lengthy periods

and in poor conditionsNB Amendments to Extradition Act 2003

Solving problems of the EAW

• Access to investigative measures to progress police investigation prior to charge

• Article 22 – Temporary transfer with consent of a person held in custody in order to gather evidence

• Article 24 - Hearing by audio-visual transmission with consent of experts, witnesses and suspects

• Article 25 – Hearing by telephone?

Framework for less intrusive means to investigate cross border crime

• Potential for significant volume of requests (approx. 15,000 EAWs issued in 2011)

• Roadmap for strengthening procedural rights of suspects and accused persons in criminal proceedings

• Only applies to domestic and EAW cases• Will it be possible to effectively defend

against EIOs w/o a built in hearing and w/o roadmap rights?

Effective defence rights?

© Sten, Denmark