Media companies should be aware of new European legislation which is set to widen the circumstances under which legal authorities can demand that journalistic material is handed over for use in evidence in criminal cases.
The new European Evidence Warrants allow law-enforcing authorities in other EU Member States to make a direct request to the UK authorities for information concerning criminal cases. The UK would then be required to collate the information requested, without further orders being required from a UK court, seemingly without any of the safeguards currently in place to ensure that law enforcing authorities have to satisfy certain tests before being permitted access to journalistic material.
Currently the police can obtain journalistic material if they satisfy the access conditions under the Police and Criminal Evidence Act 1984. The police must seek a production order, to be granted by a Circuit Judge, and are required to set out the reason why the material is sought and state that it is necessary to the investigation of an indictable offence. However, the European decision setting out the requirements of European Evidence Warrants has no special provisions for journalistic material and it remains to be seen whether the provisions will provide such safeguards when incorporated into UK law.
What is a European Evidence Warrant?
The European Evidence Warrant is a European Council framework decision designed to streamline the process whereby criminal evidence is obtained from other Member States. The current system of mutual assistance has been criticised as slow and cumbersome and the purpose of the new legislation is to clarify when assistance must be provided and place the burden heavily on the issuing State (ie the State requiring the information) to meet the conditions required for the release of the information so that the executing State (ie the State receiving the request) need not be extensively involved in the execution of a warrant.
What does it cover?
An EEW can be issued for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters. This includes such items held by a third party, from a search of the private premises of a suspect and details of financial records, statements, interviews or hearings involving the suspect.
It only applies to evidence which already exists and therefore does not include requiring an executing State to conduct interviews, carry out bodily examinations or obtain information from interception of communications (although see below for details of the European Investigation Order, which would include such measures). It may however require premises to be searched and evidence seized.
The type of proceedings for which an EEW may be used are:
- criminal proceedings brought by a judicial authority in respect of a criminal offence under the national law of the issuing State
- proceedings brought by administrative authorities in respect of an act punishable under the national law of the issuing State where the decision may give rise to court proceedings
- proceedings brought by judicial authorities in respect of an act punishable under the national law of the issuing State where the decision may give rise to court proceedings
- all of the above for offences for which a legal entity may be held liable or punished by the issuing State.
What is the test?
An EEW should only be issued where:
- the material to be obtained is necessary and proportionate for the purposes of the criminal or other proceedings concerned
- the material could be obtained by the issuing State under their own national law in a comparable case.
The responsibility of compliance with these factors lies with the issuing State and, as such, the executing State cannot challenge the order on these grounds.
Who can issue an EEW?
An EEW should only be issued by judges, courts, investigating magistrates, public prosecutors or another judicial authority identified by a Member State.
There is a standard form which should be used to make an EEW in all cases to ensure the appropriate information is given.
If an executing State wishes to refuse an EEW it must do so within 30 days. Compliance with the EEW should usually be within 60 days unless there is a ground for postponement.
Can a State refuse to hand over the information?
The grounds of refusal to comply are limited.
The general rule is that an executing authority should recognise an EEW without any further formality being required. In this sense the scheme is an example of mutual recognition, rather than merely assistance whereby the executing authority might assess whether the request from another Member State should be fulfilled.
A State may, in circumstances where search and seizure is requested, refuse to enforce an EEW under the principle of dual criminality (ie that the offence on which the warrant is based is not an offence under the national law of the executing State); however, this is not a ground for non-compliance where certain offences are concerned. These include terrorism, human trafficking, corruption, murder and rape, where the offence in the issuing State is punishable by a custodial sentence of three years.
Other grounds for non-compliance are where the execution of an EEW would breach the immunity or privilege in the Executing State, where national security interests would be jeopardised or where compliance would involve the use of classified information. However, these exclusions only apply where gathering the evidence would be excluded for the same reasons under domestic law.
Is it in force?
The scheme runs in parallel with the existing mutual assistance programme but this is intended as a transitional provision. The date for implementation into domestic law was 19 January 2011.
As the result of a European Council Framework decision, Member States are obliged to bring EEWs into effect in their national law but the precise means of doing so are left to each State. The provisions do not come into force by direct effect which means that they cannot be enforced against a State without further steps being taken to enact the provisions into national law.
However, while the provisions have been incorporated into Scottish law under the Criminal Justice and Licensing (Scotland) Act 2010, there do not seem to be equivalent provisions under English law. It seems likely that the reason for this is the potential implementation of the European Investigation Order (EIO).
If the EIO were to come into effect, the EEW regime would be rendered obsolete and only the EIO provisions with regard to evidence gathering would be in force. The UK Government opted into the EIO on 28 July 2010. This is a wide-ranging piece of proposed legislation which fully adopts a scheme of “mutual recognition” rather than mutual assistance in areas from extradition to the collation of evidence. This would require that the authority in one Member State could require from the authorities of another that witness statements are taken, bodily samples taken and intercept evidence taken and handed over. Law enforcement authorities from the issuing Member State could also require that their own officers are involved in the investigation in the executing Member State.
There is considerable unease surrounding these far-reaching proposals and the detail of the scheme is yet to be finalised. The Joint Committee on Human Rights launched a consultation in December 2010 in relation to the impact of the EIO on extradition and it is expected that the proposals will be the subject of several redrafts before finalised. Whether or not the EEW is incorporated into domestic law in the meantime remains to be seen.
Assuming that the EEW is incorporated into domestic law this legislation will certainly make it easier for foreign legislative authorities to request documents held in the UK and the safeguards to prevent oppressive applications and unreasonable requests will be diminished. An executing State will have limited power to refuse to hand over the information or carry out a search.
The extent to which this will affect law-abiding citizens and companies remains to be seen, but with the list of offences covered by the decision so wide, and the lack of recognition of the dual criminality rule in so many cases, it is likely that companies which hold a large amount of data will see the requests made of them increase in number. Further, the lack of special safeguards for journalistic material should cause concern to media companies who may wish to consider further how much information they hold in this jurisdiction.
The further implementation, should it go ahead, of the EIO will increase the scope of Member States to gather evidence from other EU countries and with it the burden on UK companies and media organisations is likely to increase.