Cooperation on crime, justice and police
Initially, the European Community was given no explicit responsibilities in the fields of justice and home affairs. However, the growing challenges of cross-border crime, terrorism, and simple practical legal problems faced by citizens living in EU countries other than their own and by companies trading in several Member States led governments to agree that some common action in these matters at European level would be beneficial.
| Index |
| Justice & Home Affairs |
| Police Cooperation |
| Euro Arrest Warrant |
| Safeguards |
| Euro Evidence Warrant |
| Civil & Criminal Justice |
| Drugs Strategy |
| Criminal Offences & the EU |
| Key points |
Member States decided to begin cooperation at EU level on these matters in 1991, when they signed the Maastricht Treaty which brought inter-governmental cooperation on the issues of asylum, immigration, frontiers, visas and judicial affairs into the Treaty on European Union. But instead of using the traditional procedures of the EC (where the Commission is charged with drafting proposals, the Council of ministers decides - often by qualified majority voting and with the agreement of the European Parliament - and any disputes over interpreting agreements are referred to the European Court of Justice), cooperation on these matters was established in a separate largely intergovernmental "pillar" of the EU, with decisions taken by unanimity in the Council, a right for the ministers to overrule the EP and with no role for the Court of Justice.
The Amsterdam Treaty (1997) transferred decisions on asylum and immigration and cooperation on civil matters to the traditional EC system, but was accompanied by two protocols that recognise the right of the UK (and Ireland) to exercise their own frontier controls and which enable the UK and Ireland to decide whether to participate ("opt-in") or not to any developments in this area.
The remaining intergovernmental "pillar" ("Provisions on police and judicial cooperation in criminal matters") is used to cooperate on combating terrorism, trafficking of persons, offences against children, drug trafficking, arms trafficking, corruption and fraud, racism and xenophobia. This is done through closer cooperation between police forces, judicial authorities, customs authorities and other competent authorities in the Member States, and through approximation, where necessary, of rules on criminal matters in the Member States.
A "passerelle" (bridge) clause allows Member States to agree (unanimously) to transfer further matters to the traditional Community procedures, but if they do, the opt-in/opt out for the UK and Ireland will still apply.
The Treaty does not affect the Member States' exercise of their responsibilities for maintaining law and order and safeguarding internal security.
The Justice & Home Affairs (JHA) Work Programme
A first five-year JHA programme having been completed in 2004, the European Commission published a review of achievements and made suggestions for a new programme for the next five years. National ministers adopted "The Hague Programme", setting out their aims in the field of JHA, in November 2004. It is important to note that this programme is a political statement; any measures arising from it will have to go through the full EU legislative process. The UK will continue to opt out of some measures, usually those concerned with legal migration and other aspects of border controls.
Europol, the police cooperation agency, exchanges information and gathers intelligence on organised crime and now produces an annual threat assessment for Member States. This threat assessment highlights the dangers to the EU from organised crime and suggests ways Member States can tackle it.
Europol is extensively involved in cooperation against organised crime, not least drug trafficking, people trafficking and terrorism.
A European Police Training College has been created at the British police college in Bramshill, Hampshire. The College is training police officers in how the various cooperation systems work so that they can tackle cross-border crime more effectively.
There is a considerable amount of sharing of practice between professionals involved in fighting crime and terrorism. This does not necessarily generate legislation but is regarded by the professionals as immensely valuable. We can learn from the ideas that police and security agencies have in other Member States, and vice versa.
It is sometimes suggested that Europol is on the way to becoming a "European FBI". This is to misunderstand the powers and purpose of the organisation. It does not have operational powers of the kind that the FBI has. Europol works through police officers seconded to it by Member States who act as liaison officers; it has no powers of arrest or investigation itself.
The European Arrest Warrant (EAW) was created so that there will normally be direct enforcement by a judge in one Member State of a warrant for arrest issued by the judicial authority of another Member State. An EAW may only be issued for any offence punishable by the law of the issuing state with a maximum sentence of 12 months or more (in other words, quite significant offences), or, for criminals already convicted and "on the run", at least four months.
Between 1 January 2004, when the EAW scheme came into force, and 22 February 2006, 175 arrests were carried out in the UK as a result of European Arrest Warrants and at least 90 arrests at our request occurred in other EU countries. A suspect wanted in connection with the attempted London bombings of 21 July 2005 was extradited from Italy using an EAW in September 2005. The average time taken to extradite a suspect has fallen from over nine months to 45 days since the EAW was introduced.
Extradition law traditionally imposed a requirement of 'double criminality', i.e. that the requested state need not render the accused unless the offence with which he was charged in the requesting state was also an offence in the requested state. The EAW does not do this but instead lists a range of serious offences, including terrorism and connected offences, illicit trafficking in drugs or weapons, corruption and fraud, murder, kidnapping and hostage-taking. For offences in these categories, as defined by the law of the issuing state, the requirement of double criminality is abolished if they are punishable by imprisonment for at least three years.
The Decision contains a number of safeguards for the accused. It states that it respects fundamental rights and observes the principles of liberty, democracy and respect for human rights and fundamental freedoms recognised by Article 6 of the Treaty on European Union.
The Decision allows a Member State to refuse to surrender a person on the grounds of gender, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation. Moreover, the Decision does not "prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media".
The Decision requires the requested state to keep the accused informed of the EAW and the proceedings flowing from it, and to give him legal counsel and, if necessary, an interpreter. Unless he or she consents to being surrendered, the accused is entitled to be heard by the executing judicial authority.
The European Arrest Warrant makes for a faster and smoother process, whilst retaining the key safeguards that protect the rights of the accused.
The creation a European Evidence Warrant is currently under negotiation; it is expected to be agreed by the end of 2006. This would allow a police force in one Member State to seek evidence from another Member State's police. It is already possible to request the freezing of evidence or assets and to enable asset freezing orders in one Member State to be recognised in another.
Civil & Criminal Justice Cooperation
The UK would like to see new rights for EU citizens when they are arrested in other EU states. The possible new rights would include the right to an interpreter and to proper legal advice. This is currently under negotiation.
A measure to enable debts acquired in one Member State to be pursued in another country - a European payments order - has been agreed. A further measure to allow small claims to be pursued across the EU is under discussion.
The European Council in December 2004 adopted an EU Drugs Strategy for 2005-12; the aim is to confront drugs use and trafficking. The Council adopted an Action Plan in June 2005 for implementing the strategy over the next three years. Eighty separate measures are included in the Action Plan, including strengthening co-operation between enforcement agencies in Member States, tackling money laundering and achieving a common definition of drug-related crime.
Criminal Offences and the European Community
In September 2005 the European Court of Justice clarified the making of criminal offences under European Community law. As described above, there is a division between European Community law, which largely covers economic, social and environmental policy, and European Union law under the largely intergovernmental pillars which cover other policy areas, including crime and justice. Most decisions under European Community law can be decided by qualified majority voting in the Council of Ministers, jointly with the European Parliament. The Court confirmed that "as a general rule, neither criminal law nor the rules of criminal procedure fall within the Community's competence" but it also decided that the Community did have the power to create criminal offences in certain cases in order to ensure that common laws on, say, pollution are "fully effective".
The judgment means that the traditional Community decision making procedures can be used to define criminal offences when this is necessary to ensure that a Community law can be effectively enforced. The sorts of fields in which these would apply would be cross border offences including fraud, marine pollution, intellectual property and counterfeiting.
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The EU is an effective forum for dealing with cross-border crime and justice issues.
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The European Arrest Warrant has dramatically shortened extradition times in Europe.
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Police co-operation provides an opportunity to work together to tackle cross-border crime like people smuggling and drug misuse while retaining national control of police services.
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Measures to deal with offences like money laundering are only really effective if agreed at EU level; nation states cannot tackle these sorts of problems alone.