Combatting the cross-border criminal

Imagine your astonishment. One of your clients, a UK national living in Scotland, stands accused of drug smuggling in another EU member state (for the sake of argument, let’s say Portugal). The police obtained a warrant for his arrest from a local magistrate, who sent it to his counterpart in Edinburgh Sheriff Court. After checking that the warrant met a few basic requirements, the sheriff ordered your client to be arrested and – within just a few weeks of the whole process starting – he was surrendered to the Portuguese authorities. Now he is languishing in “preventative prison”, without hope of bail, where he may have to wait months before he is even charged. And there is little, if anything, you can do about it.

Bypassing traditional extradition procedures in this way – even just for questioning – has been possible since the European arrest warrant (EAW) came into force in the UK last year. Some may find this scenario alarming. Others will argue that without this new instrument of cross-border criminal justice co-operation, bringing Hussain Osman – one of the suspected bombers in the failed 21 July attacks on London – back from Italy to the UK would have taken many months (or even years) rather than just 58 days.

Be prepared

Scottish authorities have already issued 22 EAWs (of which 14 to Spain) to six different jurisdictions and executed five warrants on behalf of three other countries. As Sheriff Charles Stoddart – responsible for handling EAWs in Scotland – explained to a recent conference in Edinburgh, all Scotland’s legal professions need to be prepared to deal with such warrants.

Indeed, as agreement on further initiatives is reached, it will not only be the arrest and transfer of their clients to other EU countries that solicitors might have to worry about. What about the involvement of foreign officers in Scottish police investigations? The Crown’s use of evidence gathered in other jurisdictions? Or the seizure of evidence from their client on the orders of a foreign judge? Possibly even the need to change criminal procedures in Scotland to respect common safeguards across the EU?

The conference in Edinburgh University’s Playfair Library on 29 September-1 October, organised by the Academy of European Law in co-operation with the Law Society of Scotland, the Faculty of Advocates and the Crown Office, dealt with a raft of measures either planned or already adopted to enable much closer co-operation between Europe’s law enforcement and judicial authorities.

The EU is playing catch-up as organised criminals have made the most of the free movement resulting from the single market and the removal of internal frontiers in Europe. The threat of terrorism has only added impetus and raised public acceptance for developments that have long seemed necessary to tackle organised cross-border crime such as fraud, drug smuggling, human trafficking and cyber-crime.

What the practising solicitor must know is what’s new, what problems or wider implications may result from EU measures, and what remedies are available should something go wrong for the client.

Mutual recognition

The cornerstone of all these developments in EU criminal justice co-operation is the principle of “mutual recognition”, requiring the authorities to trust their counterparts in other jurisdictions to apply the same standard of justice as they would themselves. This offers more scope for swift and effective action than trying to harmonise criminal procedures at European level, but raises the issue of mutual trust. Can different criminal laws and procedures built up as part of one legal culture be so easily accepted by another? The EU continues to lack a single legal or judicial culture, especially in criminal matters.

As Ivan Bizjak, a former Slovenian Justice Minister and now Director General of Justice and Home Affairs for the EU’s Council of Ministers, explained to the Edinburgh conference: “There are strengths and weaknesses in every member state. Perhaps we will have to learn that we are different, but that we share common values and that our legal systems, like those in the United Kingdom, can co-exist without being fully harmonised. I understand that the Scottish legal system is very different from the English. In spite of that, you have been able to co-operate with one another. It is perhaps in that type of mutual confidence that we can find the vehicle for the further development of our common space of justice.”

From arrest to evidence

The EAW is the most advanced example of the principle of mutual recognition in practice, though the Osman case proved that the appointment of liaison magistrates in other countries’ justice ministries is also invaluable for speeding up communication and co-operation. By introducing a standard format and simplified procedures for the arrest of serious organised crime suspects, the EAW has allowed member states to do away with lengthy and difficult extradition proceedings within the EU.

According to Mike Kennedy, the senior British police officer who heads the EU’s judicial co-operation agency Eurojust, the average period from an EAW being issued to a suspect being returned to the issuing authority was 43 days in 2004, compared to nine months under the Extradition Convention procedure in 2003. In total, UK authorities have used the EAW to make 158 arrests and return 73 fugitives to other EU countries, while 82 arrests have been made in other EU jurisdictions on the request of UK authorities and 56 fugitives returned.

So from the prosecutor’s perspective, the EAW has been a success – though there have been some practical problems in its implementation, such as poor-quality translations, incomplete information and trouble identifying the competent authorities. Differences in judicial culture can also be a hurdle: for example one Portuguese judge, asked to authorise an EAW issued by the UK for the return of a convicted fugitive to serve out his sentence, wanted to know the factual basis for his conviction. The English judge had to explain that in the jury system he could not ask all 12 jurors to explain the factual basis on which they had found the man guilty.

Plans for an EU framework decision to establish a European evidence warrant (EEW) seem likely to encounter even more challenges, as James Hamilton, Ireland’s Director of Public Prosecutions, explained to the Edinburgh conference: “The basis of EU criminal justice co-operation has to be mutual recognition, but in relation to evidence this poses fundamental problems. For example, in England not replying to police questioning can be used in evidence against the accused – but not in Ireland. So could such evidence be submitted in an Irish trial?”

Procedural safeguards

To address this problem, EU leaders asked the European Commission to propose minimum procedural safeguards across all member states. These are proving hard to agree upon, however. The problem, as Mr Hamilton explained, is that unless such safeguards amount to harmonisation – which everyone wants to avoid – they risk ending up being meaningless: “What would bother most people in Ireland, for example, is the lack of bail in some countries, but this issue is not included in the Commission’s proposal. On the other hand, the proposed safeguards regarding legal or consular aid would either be impractical – if the highest common denominator is used – or repetitive and unnecessary – if minimalist standards are agreed.”

The European Commission argues that its proposal would enhance existing safeguards, and not simply duplicate the protections already guaranteed by the European Convention on Human Rights. Several speakers accepted that the work the Commission was doing in this area was useful, but could be better targeted or organised.

Moves towards agreeing common safeguards could encourage overdue reform of aspects of criminal procedure in certain member states. One example given by Gerard Brown, Convener of the Law Society of Scotland’s Criminal Law Committee, is the current situation in Scotland whereby police can question suspects without the presence of a solicitor: “In many jurisdictions in the EU, police are not allowed to question someone before a solicitor is there. In some jurisdictions, what is said before a legal representative arrives is inadmissible. That is not the case in Scotland, and the issue is, does our law have to change to comply with Europe and this proposed framework decision – and if it does, what impact will that have?”

Oversight and remedies

A major question mark hanging over further EU criminal justice co-operation is the lack of checks and balances both at the legislative stage and in terms of effective judicial remedies. Challenges to the EAW were mounted in some member states – mainly on the grounds that the surrender of nationals is constitutionally prohibited, but also that an EU framework decision (agreed by governments but not subject to parliamentary ratification) was an insufficient legal basis.

The planned EU Constitution would have dealt with some of these concerns by increasing democratic scrutiny by the European Parliament and extending the jurisdiction of the European Court of Justice (ECJ) in this field. “Justice and home affairs is the big loser from the demise of the Constitution”, Professor Sir David Edward, a former judge at the ECJ, told the conference.

The question will now be whether an effective system can be found for monitoring EU criminal justice co-operation and providing some kind of redress if needed. Mr Bizjak suggested a body similar to the torture committee of the Council of Europe, whereas Professor Peter Baauw of the University of Utrecht spoke in favour of the appointment of a European criminal law ombudsman, as advocated by the Council of Bars and Law Societies of Europe.

One thing is clear, though: criminals will continue making the most of open borders and law enforcement authorities will remain determined to catch them, so EU criminal justice co-operation is here to stay.

John Coughlan, Academy of European Law, Trier