Select Committee on the European Union (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 European Commission 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 European Arrest Warrant (EAW), the European Supervision Order, the European Criminal Records Information System, and those laws establishing the EU’s judicial and policing agencies Eurojust and Europol. 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 fraud, including the corruption 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 2 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.