The European Investigation Order (EIO) scheme will come into force in the UK on 31 July 2017. It will be done by way of secondary legislation (SI No 730 of 2017 – The Criminal Justice (European Investigation Order) Regulations 2017). As reported in our previous blog there was a delay to Directive (2014/41/EU) being implemented. EU member states had undertaken to enact the provisions by 22 May 2017 only for the recent general election to intervene domestically.
This blog looks more closely at what the scheme actually entails.
What is the European Investigation Order?
The EIO is based on the principle of mutual recognition and as the explanatory memorandum sets out, its objective is “to create a single, efficient and flexible instrument for obtaining evidence in another Member State in the framework of criminal proceedings.”
Mutual recognition is seen as preferable to traditional mutual legal assistance (MLA) principles and is the core of police and judicial cooperation within the EU. Until now only two instruments – both Framework decisions - based on mutual recognition were available to judicial authorities: on freezing orders and on the European evidence warrant. There are limitations to the latter as it applies only to pre-existing evidence and it was not enthusiastically adopted by Member States many of whom have failed to implement it.
Under MLA principles the receiving state is “requested” to assist and may choose to investigate or consider the grounds and motivation for the request. In a mutual recognition scenario, the issuing state “orders” the receiving state to cooperate and the scope for refusing assistance is severely curtailed.
How does the EIO work?
The EIO brings together various pre-existing rules (in addition to the aforementioned framework decisions, the Council of Europe Convention of Mutual Assistance in Criminal Matters 1959, parts of the Schengen Agreement and the EU Convention on Mutual assistance of 2000). It allows one Member State to request a specific criminal investigative measure to be carried out by another, whereas before now the focus was on the type of evidence to be gathered. The regulations expressly envisage certain investigative measures (for which particular requirements are provided):
- The hearing of evidence by videolink or telephone conference.
- The provision of banking information.
- Covert investigations.
- Interception of telecommunications.
- The temporary transfer of prisoners (both to give evidence in proceedings and to “assist in the investigation of an offence”).
The considerations for a judicial authority in making an order are that a domestic criminal investigation or prosecution exists, that it is necessary and proportionate to make the order and that the investigative measures to be ordered could lawfully have been undertaken “under the same conditions in a similar domestic case” (for example, court authorisation of a search warrant; has it been granted or would it be granted?).
Can an EIO be challenged?
Once an order is received by a relevant UK central authority (ordinarily the Secretary of State, though the Commissioners of HMRC may fulfil the role in respect of HMRC-related matters), the grounds for refusing to carry out the order are set out.
Such grounds exist, among other circumstances, where:
- execution of the EIO would run counter to “essential national security interests”
- there are substantial grounds for believing that execution would be incompatible with any Convention rights
- there are substantial grounds to believe that the EIO has been issued to investigate or prosecute a person on the grounds of protected characteristics
- the criminality under investigation does not constitute an offence in the UK (and is not punishable in the issuing state with a minimum of three years imprisonment)
- the relevant investigative measure is restricted in UK law to a category of offences or offences punishable by a certain threshold, which does not include the offence in the order
- the measure sought either does not exist or is limited to particular offences different to the one under investigation
- the request is for covert surveillance which would not be permitted in a similar domestic case.
Timetable once an EIO is received
A decision on execution must be made within 30 days, and once a decision to execute is taken any specified investigative measure must be taken within 90 days of that decision (though these time limits can be extended provided reasons are given). Execution may be postponed if it might prejudice an ongoing UK investigation or prosecution, or if the evidence sought is already being used in such an investigation or prosecution.
It is noteworthy that a defendant in criminal proceedings is entitled to apply to a judicial authority (any judge or justice of the peace) for a EIO to be made, and so the benefits of avoiding the problems with the MLA regime (the lack of transparency and the usually slow pace of the process) are not reserved to state agencies.
Police and judicial cooperation is not one of the key topics on the table during the early stage negotiations on what the UK’s withdrawal from the EU will look like. However, David Davis has told the House of Commons that one of the government’s four aims for the Brexit negotiations was to “keep our justice and security arrangements at least as strong as they are”, and one of the government’s 12 guiding principles for negotiations with the EU is “to continue its cooperation with the EU to preserve security, fight terrorism and uphold justice”.
ON the EU side of negotiations, a paper published on 28 June “Ongoing Police and Judicial Cooperation in Criminal matters” includes a list of key instruments – which includes the EIO – and contains the main principles of the EU position in the Art. 50 negotiations. A key principle is that the Withdrawal Agreement should allow for the orderly completion of ongoing procedures, and should establish the procedural stage to be reached in order for that procedure to continue post-UK withdrawal. Furthermore, all applicable procedural rights enshrined in Union law should continue to apply.
These may prove to be sticking points in the negotiations when (or if?) we get to that point, and so while the EIO could well be a useful tool for cross-border criminal matters, it remains to be seen whether it will become properly established in the UK. The danger of this was already raised in the recent Annual Report from the Serious Fraud Office which cited a key strategic risk as the failure to implement the European Investigation Order correctly, and a loss of access to EU measures and tools arising from Brexit, leading to an adverse effect on investigations and prosecutions.