Select Committee on the (Sub-Committee E - Justice, Institutions and Consumer Protection & Sub-Committee F - Home Affairs, Health and Education)

Joint inquiry into the UK’s 2014 Opt-out Decision (Protocol 36)

The Police Foundation’s response

About the Police Foundation The Police Foundation is the only independent charity focused entirely on developing people's knowledge and understanding of policing and challenging the police service and the government to improve policing for the benefit of the public. The Police Foundation acts as a bridge between the public, the police and the government, while being owned by none of them. Founded in 1979 by the late Lord Harris of Greenwich, the Police Foundation has been highly successful in influencing policing policy and practice, through research, policy analysis, training and consultancy.

Introduction 1. Under Protocol 36 to the EU Treaties, as amended by the Lisbon Treaty, the UK is entitled to withdraw from approximately 130 EU policing and criminal justice measures. The Government has until 31 May 2014 to decide whether to continue to be bound by the measures, or whether to use its right to opt out. The right to opt out is exercised en bloc, i.e. all pre-Lisbon measures must be opted out of in one go. Application could then be made to opt back into specific measures.

2. The Home Secretary has announced that the government is currently minded to use its right to opt out of all the pre-Lisbon police and criminal justice measures and then negotiate with the and other member states to opt back into those individual measures which are judged to be in the national interest.1 At this stage it is not clear which measures the Home Office would plan to opt back in to, which it would like to opt out of completely, and the reasons for this approach. We can only therefore set out below a brief general response. We hope to be given additional opportunities to present our concerns in response to further consultations on this topic.

Participation in pre-Lisbon policing and criminal justice measures 3. The measures in question include those which have significantly benefitted cross-border policing, including the (EAW), the European Supervision Order, the European Criminal Records Information System, and those laws establishing the EU’s judicial and policing agencies Eurojust and . There is no doubt that there are flaws with some aspects of these measures and the EAW has, in particular, attracted criticism. However the measures represent a package of mutual legal assistance and mutual recognition which together greatly aid policing across Europe, enabling the British police to find and extradite serious criminals hiding in the UK as well as to demand the return of those criminals who have committed offences here and subsequently fled abroad. Indeed, the benefits of the current system are so clear that many of its previous critics are in firm agreement that, despite its problems, opting out could place the British public at serious risk of harm.

1 http://www.homeoffice.gov.uk/media-centre/speeches/home-sec-eu-justice-statement 4. Much of modern crime is organised, international and cross-border and constitutes a serious threat to the UK, both in terms of financial cost and public safety. According to SOCA’s 2009/10 UK Threat Assessment:

‘…towns and cities all over the UK are affected by organised crime, with areas plagued by drug abuse and associated volume crime; by organised immigration crime, including the exploitation of illegal immigrants in the sex trade and as cheap labour; by violent crime, particularly the availability and use of firearms; by , including the of public officials’.

5. ‘Local to Global’, the Government’s strategy for tackling the cross-border threat of organised crime, consists of three elements:  Stemming the opportunities for organised crime to take root;  Strengthening enforcement action against organised criminals, including a commitment to tackling criminal finances; and  Safeguarding communities and businesses by reducing their vulnerability to victimisation.

We believe that exercising the opt-out, and in particular opting out of measures that relate to cross-border policing, would seriously undermine all three of these aims. Victims, criminals, evidence, and data for investigation and for prevention are located across different European countries as well as more widely. A system of mutual assistance, recognition and support across the EU is therefore vital to ensure that the British police have access to the information and cooperation they need to fight organised crime in the UK efficiently and effectively.

6. In part because of the threat to the UK, Britain has been at the forefront of policing and crime cooperation in Europe, including the creation and part-funding of the ECRIS database and the hosting of the EU Police Training Centre at Bramshill. The Director of Europol is British, as is the former President of Eurojust. The standard of cross-border policing in Europe has improved because of the UK’s efforts and expertise, as well as through British funding. Indeed, ‘Local to Global’ states:

‘Internationally, we will seek to enhance cooperation at all levels. This includes the Justice and Home Affairs Committee on internal security that ensures operational cooperation on internal security within the European Union’.

7. The system that the UK has championed, supported and part-funded is a package based on diplomacy and reciprocity; it requires parity to function effectively. There is a real danger that by opting out the UK will be unable to make use of this package and, without the help it provides in identifying and extraditing serious criminals, there is a risk that the UK could potentially become what amounts to a safe haven for cross-border organised crime groups. We therefore have grave misgivings about plans to opt out of the valuable package of mutual assistance currently in place.

8. Our principle concerns arise in relation to the following policing and criminal justice measures:  The European Arrest Warrant  The European Supervision Order  The European Criminal Records Information System  Laws establishing the EU’s judicial and policing agencies Eurojust and Europol

The European Arrest Warrant 9. The EAW came into force on 1 January 2004 under the Extradition Act. Prior to the EAW, the UK police had to use a range of complicated bilateral agreements contained in the 1957 European Convention on Extradition. Under this system it would take months or even years to extradite a foreign suspect. The EAW enables the police to cut across bilateral agreements resulting in a system which is simpler, more efficient, more effective and significantly cheaper. Under the EAW it takes on average approximately 47 days to extradite a foreign suspect. As

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Commander Allan Gibson, representing the Association of Chief Police Officers (ACPO), noted2 in March 2011 in evidence to the parliamentary Joint Committee on Human Rights:

‘When you need to have someone arrested abroad, it is a simpler, faster and more certain process of getting a person before your courts. The police service benefits from that. It is much easier than what went before.’

10. When introducing the Extradition Bill the then Home Office Minister Bob Ainsworth stated:

‘British victims of crime, where the suspect has fled overseas, currently have to wait up to a year for that person to be extradited back to the UK to face British justice – causing untold upset and frustration to victims and their families. And it can take anything up to six years to extradite someone back to an EU member state. The Extradition Bill will deliver swifter justice by removing the unnecessary delays and duplication that afflict our archaic and costly extradition laws – contested extradition cases cost the British taxpayer an average of £125,000.’

Since 2002, when Mr Ainsworth made this statement, movement across the EU has greatly increased, indicating that a return to the former system could result in far greater cost to the taxpayer. The UK itself has a high number of foreign criminals within its borders and the EAW is used regularly to extradite them. In 2011, for example, 93% of the individuals surrendered by the UK under the EAW were foreign fugitives hiding in UK. Without an efficient and effective system of extradition, Britain could potentially become a safe haven for these people.

11. There is no doubt that there are problems with the EAW, and its supporters are not blind to these, backing the measure in spite of its flaws. The principal difficulty is that the warrant does not include a test of proportionality. This means that countries can make use of British police resources to track down criminals who have committed even small crimes. Poland, in particular, has attracted criticism for using the EAW in a disproportionate manner and critics have pointed to the resources the police can be obliged to put into finding and extraditing low level criminals. However, as identified by the Metropolitan Police3, opting out of the EAW would be a false economy as every extradition (whether proportionate or not) would cost significantly more under the 1957 system – the Metropolitan Police estimates up to ten times the current amount. The amount of time that everyone involved in each extradition would spend on the case - including the police and the Crown Prosecution Service - would increase, resulting in a slower, more cumbersome and more expensive system. As a study by the Cambridge Centre for European Legal Studies4 identifies:

‘The EAW was introduced for reasons of practical necessity: the existing system of extradition had become unacceptably cumbersome, expensive and uncertain for modern conditions.’

12. In addition, steps have been taken to deal with the problem of disproportionate use. In May 2012 the European Commission5 stated:

‘Rather than re-opening the successful EAW Framework Decision, the Commission is committed to improving the EAW system through other measures such as procedural rights legislation and guidelines to practitioners. To this end, in relation to minor offences the Commission has stressed that a proportionality test should be applied when an EAW is issued and Member States therefore have been urged by the Commission to take positive

2 Joint Committee on Human Rights (2011) The Human Rights Implications of UK Extradition Policy, Fifteenth Report of Session 2010–12, HL Paper 156, HC 767. 3 Commander Allan Gibson, Metropolitan Police in interview with the Police Foundation, 21 November 2012 4 Hinarejos, A., Spencer, J.R. and Peers, S. (2012) Opting out of EU Criminal law: What is actually involved?, CELS Working Paper, New Series, No.1. 5 http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2012-002931&language=EN 3

steps to ensure that practitioners use the recently-amended EAW handbook as the guideline for the manner in which a proportionality test should be applied.’

Efforts are also being made to provide training for European police, with police exchanges taking place between the UK and other European countries. In oral evidence to the Joint Committee on Human Rights6, Detective Superintendent Murray Duffin, representing the Metropolitan Police Service, stated:

‘An awful lot of work has been carried out with the Home Office and the CPS and with ourselves, with various meetings and bilateral arrangements with the Poles to try to introduce some sort of proportionality test. Anecdotally, I would say that those types of requests are reducing.’

13. Despite its flaws, the case for the EAW seems clear. The EAW is viewed as time efficient,7 effective and simple8 and the Ministry of Justice has stated that the EAW plays a vital role in the UK’s fight against international and transnational criminality, enabling the UK to extradite over 1,000 fugitives to other EU member states between 2004 and 2009.9 A number of senior figures in policing and criminal justice have come out in support of the measure, recognising that the loss of the EAW would be a serious blow to European police co-operation and that withdrawing from the EAW would have serious implications for public safety.10 The recent Scott Baker Review of Britain’s extradition arrangements, requested by the Home Office, found that although the EAW had its flaws (which the review recognised the EU was attempting to remedy):

‘We have concluded that the European arrest warrant has improved the scheme of surrender between Member States of the European Union and that broadly speaking it operates satisfactorily.’11

European Supervision Order (ESO) 14. The ESO establishes a system where a person can be released on bail, back to their own place of residence, while awaiting criminal proceedings in another Member State. It was set up following problems identified where suspects were waiting for their trial to begin for a considerable time in a foreign country, spending sometimes months or years pre-trial in prison abroad. The ESO is due to come into force in December 2012 and is one of the measures affected by the opt-out. Britain would therefore no longer be a party to this mutual agreement if the right to opt out under Protocol 36 were exercised.

6 Available at http://www.parliament.uk/documents/joint-committees/human- rights/Fifteenth_Report_Extradition_Oral_Evidence.pdf 7 House of Commons Justice Committee, Justice Issues in Europe, Seventh Report of Session 2009-10, HC 162-I. 8 Evidence of Mike Kennedy, House of Commons Justice Committee, Justice Issues in Europe, Seventh Report of Session 2009-10, HC 162-I. 9 House of Commons Justice Committee, Justice Issues in Europe, Seventh Report of Session 2009-10, HC 162-I. 10 For example the Scottish Justice Secretary Kenny MacAskill (Newsnet Scotland, 5 November 2012. Accessed at http://newsnetscotland.com/index.php/scottish-news/6186-westminster-urged-to-clarify- situation-on--arrest-warrants); Charles Clarke former Home Secretary (Warrell, H. and Parker, G. (2012) ‘Police defend EU arrest warrants’, Financial Times, 6 February); and the House of Commons Justice Committee (Justice Issues in Europe, Seventh Report of Session 2009-10, HC 162-I). 11 Baker, S., Perry, D. and Doobay, A. (2011) A Review of the United Kingdom's Extradition Arrangements, Home Office. 4

15. It is widely recognised, even by those who support opting out, that the ESO could solve some of the identified problems in the EAW by allowing a British citizen to be supervised in Britain until a trial is ready to begin abroad. A paper for Open Europe, which supports the opt-out states:

‘The possibility of domestically-supervised bail procedures could help address some of the flaws in the practical operation of the EAW.’12

The European Criminal Records Information System (ECRIS) 16. ECRIS is a relatively recent system, having only become operational in April 2012. The UK is currently trialling a pilot of the system, which enables member states to access information from the criminal records database of each individual state.

17. Prior to this system being in place a previous conviction obtained in another country would not be visible to the UK police. As a result, the criminal records of people who had lived in other European countries could not be checked effectively. Thus, for example, someone with a criminal record could move to the UK and take up a position at a school without previous offences showing up on a Criminal Records Bureau check. Furthermore, if a criminal went on to commit an offence in the UK, the UK courts (as they had no access to prior conviction data) treated the person as a first time, rather than repeat, offender. With an increasingly mobile population, this created a significant gap in the criminal records checking system. As Sir Hugh Orde, President of ACPO, has stated:

‘The ability to obtain and coordinate criminal information from across Europe is vital in dealing with modern criminality which increasingly crosses borders and jurisdictions.’13

18. The UK was at the forefront of the creation of ECRIS and its supporting systems. The government invested in ECRIS itself and in the UK Central Authority for the Exchange of Criminal Records, as well as part funding a system in ACRO (the criminal records section of ACPO) to improve the electronic exchange of convictions across the EU. The UK has also, with funding assistance from the EU, begun an EU fingerprint exchange system.14 The technology Britain helped to establish is now in place; however the UK would lose access to the system if it chose to opt out.

Eurojust and Europol 19. Eurojust is the EU’s judicial cooperation body. Its role is to coordinate national investigations and prosecutions. The number of cases that Eurojust has dealt with has been increasing steadily, from 202 cases referred in 2002 to 1,441 cases in 2011. The UK is a major participant in Eurojust, with the highest number of cases (205) referred in 2009-2010. In a report in 2004, the House of Lords EU Select Committee referred to Eurojust as meeting a ‘real and increasing need for assistance in facilitating the investigation and prosecution of complex cross-border criminal cases’.15

20. Europol is the EU’s law enforcement agency. Its role is to help prevent and combat international crime and it works with EU members to improve cooperation and tackle cross- border cases of , smuggling and tax fraud. Britain is plays a leading role in the work of Europol. The agency is currently run by Rob Wainwright, who is British, and the UK Liaison Bureau has the largest proportion of officers of any country represented at Europol headquarters.

12 Raab, D. (2012) Cooperation Not Control: The Case for Britain Retaining Democratic Control over EU Crime and Policing Policy, Open Europe. 13 ACRO press release. Accessed at http://www.acro.police.uk/acro_std.aspx?id=62 14 ACPO Criminal Records Office (2010) Annual Report 2009/10. 15 House of Lords European Union Committee (2004) Judicial Cooperation in the EU: the role of Eurojust, 23rd Report of Session 2003-04, HL Paper 138. 5

Opting in again 21. As stated above, the Home Secretary has suggested that the UK could opt out of all pre-Lisbon measures and then negotiate with the Commission and member states to opt back into selected individual measures. The Home Office has not yet set out which measures it would like to opt out of completely, and which it would want to opt back in to. In theory opting in again could be possible, as long as the European Commission agrees. However, there are risks involved with this approach.

22. There is firstly the danger that the Commission may refuse permission to opt in (although this is unlikely). As the process is one of diplomacy, there is also the possibility that the Commission might attach conditions to the opt-in, such as requiring the UK to join packages of measures. Further, other member states might not be willing to accept any amendments that the UK requests, or might make those amendments conditional upon the acceptance of other Treaty amendments (this could include economic measures). As the Centre for European Reform16 points out;

‘UK officials imagine that Britain’s size and importance mean that it can automatically opt back in to around 50 EU anti-crime measures, including the arrest warrant, once the block opt-out is triggered…this is wrongheaded. The European Commission is likely to attach tough conditions to an attempted partial re-entry, and Britain’s negotiating stock in Brussels is low due to its perceived unhelpfulness during the crisis. Countries in the EU’s of passport-free travel have previously blocked Britain from joining Frontex, the EU’s border agency, and the so-called VIS, a common database of visa records. Why should they now acquiesce to British cherry-picking in policing and justice?’

23. Given the importance of the EU measures outlined above, it seems almost foolhardy to risk being excluded. Therefore, if the option to opt-out and then opt back into certain measures were to be taken up, diplomatic assurances would need to be sought, prior to opting out, that an opt-in to certain measures would be acceptable.

The European Investigation Order (EIO) 24. This is a post-Lisbon measure and thus will not be caught by the opt-out. As the UK has already opted into this order, Britain will be bound to it even if it chooses to opt out of other measures. The EIO was designed to fit within the broader package of policing and crime measures and gives the police power to order police in other member states to gather and share evidence with them. It is a mutual recognition measure and will be significantly less effective without the EAW, the ESO, ECRIS, Europol and Eurojust.

Conclusion 25. We recognise there are problems with the current package of mutual assistance and mutual recognition measures, and in particular with the EAW. However we believe that, with proper guidance and training, issues such as disproportionality in the use of the EAW could be addressed. Indeed, there is anecdotal evidence that improvement in this area has already begun. In our view the current package of measures is an important component of the work of the police in tackling cross-border crime and we would therefore strongly favour the route of remaining within the current system and working to remedy any current problems. If the Government were instead to decide to opt out, we would strongly advise that negotiations be undertaken to obtain assurances in advance that the UK will be able to opt back in to those measures which are essential, including those that we have identified above.

Abie Longstaff (on behalf of the Police Foundation) 14 December 2012

16 Brady, H. (2012) Cameron’s choice: Play to the gallery or keep Britain safe?. Available at http://www.cer.org.uk/sites/default/files/publications/attachments/pdf/2012/bulletin86_hb_article3-6180.pdf 6