The revolving door of EU criminal justice – Jodie Blackstock

18 October 2012 by

There has been much in the press recently about the UK Government being minded to opt out, and/or in, of EU criminal justice measures. The implications of this decision will be significant to the UK’s ability to investigate and prosecute crime. So what does it all mean?

Opting out of what?

The UK managed to negotiate the quite remarkable article 10 to protocol 36 of the Lisbon Treaty which allows for the UK to exercise a power that no other member state of the Union holds. The Lisbon Treaty finally incorporates EU criminal justice measures (which are referred to as the area of police and judicial cooperation in criminal matters) into the main body of treaty law.

In order to do so, it allowed a transitional period of five years (which expires in December 2014), at the end of which, all measures adopted under the earlier treaty provisions (in what was known as the third pillar) are ‘Lisbonised.’ What this means is they become directives rather than framework decisions (and various other equivalents). The difference between the two is that directives are enforceable before the Court of Justice of the European Union (CJEU) and decisions are not.

Over the course of the past ten or so years, some 130 measures have been adopted by the EU in this field. They range from organisational decisions concerning the establishment of Europol and Eurojust, to procedural decisions such as affording mutual recognition of judicial requests, like that provided in the European Arrest Warrant, or substantive law measures such as the framework decisions on combating terrorism, minimum constituent elements of acts and penalties in drug trafficking.

Some measures have been removed from the list because they have been replaced by amending directives brought after the Lisbon Treaty, such as the measure on combating sexual exploitation of children and child pornography. There has of course been an ongoing process of law making under the Lisbon Treaty for nearly three years. However, the UK also secured a separate option under the Lisbon Treaty arrangements to decide whether to opt into new measures in this field in Protocol 21. So again, enforcement powers can be avoided if measures do not appear to be in the UK’s interests. Whilst the UK has no vote on the adoption of the instrument, it seems acceptable for it to continue to negotiate on its passage through the EU Council and Parliament towards adoption so that if it manages to remove the offending clauses, we can opt in one it has been adopted.

What if the UK chooses to opt out of some but not all measures?

We must wholesale reject every pre-Lisbon measure in this field in one go, but can then seek the consent of the Council to opt back in to, in principle, as many as we like, individually, at any time. If any necessary and unavoidable costs are incurred by other member states as a consequence of our opting out, the UK must bear them. If we want to opt back in, there are different rules depending on the area of law. Where the opt in relates essentially to border controls, the Council has the deciding vote. If it is any other criminal justice measure falling under Title V of the Treaty in the area of freedom, security and justice, the Commission can set conditions of participation which if it thinks we have not fulfilled we can refer to the Council to act as final arbiter. In either scenario, the EU institutions should seek to re-establish the widest possible measure of participation of the UK in the field without affecting their practical operability or coherence. So it sounds like a pretty good arrangement (though a financial assessment of the likely costs seems a sensible idea).

What are the implications of opting out?

Well this is the interesting part which needs careful analysis. The UK is heavily engaged in cross border law enforcement operations as well as being a leader in procedural safeguards for both suspects and victims of crime, as a result of which it has invested much time, effort, research and negotiation into improving cross border crime detection and the rule of law in the EU. The UK is the host state of the European Police College, the current director of Europol and two former directors of Eurojust were British.

Europol is currently supporting 700 investigations of organised crime and terrorist networks in Europe; The UK is actively involved in over 200 of these. The UK is especially affected by many aspects of the organised crime threat in Europe, e.g. as a leading market for cocaine and heroin in Europe, a particular targeted destination for trafficked and smuggled people, and the UK’s financial institutions a particular target for cyber and fraud attacks.

The reality is that a significant number of these measures are operating to improve law enforcement capabilities across 300 police forces and 30 legal jurisdictions. If we remain out of all measures, the possibility of ensuring crime is swiftly investigated is much reduced. Whilst some commentators have suggested we can return to pre-EU measures and carry on as before, things have changed and this is not a simple exercise. Extradition can be organised through the Council of Europe 1957 Convention, but this would require decisions of Governments rather than judges, a role which the Home Secretary announced this week as something she did not wish to retain.

Furthermore, other mutual legal assistance conventions exist. However, none of these measures can supply what the EU measures can: equal parity with domestic investigations, speedy procedures, integrated systems such as the Schengen Information System which is used to transmit EAW requests and the European Criminal Records Information System. Moreover, many of these conventions are not in force, in part or in their entirety, in all member states, and may have been replaced by the EU rules. The UK would need to re-negotiate its law enforcement capabilities with 26 other countries.

If we decided to opt back in to some measures, which should we choose?

The measure which consistently gets the worst press is the European arrest warrant. It certainly has its problems, not least in ensuring an effective defence. But it is successful in ensuring there are no safe havens in the EU. Since UK nationals travel in the EU to live and work on a very regular basis, and EU citizens also make use of their visa free travel and work opportunities in the UK, there will be problems with ensuring we can collect criminals as well as not provide a safe haven for perpetrators of crime in other EU countries. A report from the Inter-Departmental Ministerial Group on Human Trafficking revealed on Thursday that numbers of trafficked people to the UK are rising. Of the top ten countries from which people are trafficked, three are in the EU (Romania, Slovakia and Czech Republic). In a letter to the Times, Anti-Slavery International point out the contradiction between the Government’s commitment to fighting trafficking and pulling out of EU crime fighting measures.

Furthermore, the UK has already opted into post-Lisbon measures concerning combating sexual exploitation of children, procedural safeguards for suspects and victims, and the ongoing negotiation of what will be the European investigation order; It will be an odd state of affairs if we are obliged to agree requests to assist with the investigation of crime from other EU member states, but not be able to carry out arrests, sentences or share information on antecedents.

It may seem odd for a human rights organisation to be making these observations. JUSTICE has been criticising the draconian nature of EU law enforcement powers since their inception. However, we would prefer reform of these measures rather than repeal. We want to see equality of arms for suspects of crime through effective judicial decision-making that recognises genuine reasons to refuse EU requests, and the introduction of less coercive measures for the investigation of crime. We also want to see the improvement of procedural rights across the EU and wonder what incentive the UK will have to continue on this programme if it doesn’t maintain the package of law enforcement measures to which they apply.

What is the UK so concerned about?

Other than the rallying cry to preserve sovereignty, the predominant concern would seem to be EU enforcement powers. The implicated measures are currently unenforceable, which is largely why most of them are under utilised. But with Commission powers to take proceedings to Luxembourg and the application of the preliminary reference procedure to clarify EU measures, the Government appears to be nervous that yet more sovereignty will be lost to the EU.

This concern needs to be put into perspective. The UK had a veto in the Council when each of these measures was passed and did not exercise it, which suggests that the impact upon existing UK law would be minimal, or welcome. Our implementation record is good and we make use of the measures we have transposed into national law where it is deemed appropriate. In comparison with most member states, the Commission is unlikely to prioritise enforcement against the UK. Moreover, national courts control the mechanism of taking preliminary references, and despite the CJEU having jurisdiction across an extensive range of competences, the UK manages to avoid constantly having its knuckles wrapped by Luxembourg.

What is in the national interest?

Despite David Cameron’s announcement in Rio that we would be opting out, the announcement to the Houses of Parliament this week has been more measured. The Government’s ‘current thinking’ is that we will opt out and then negotiate opting back in to measures which are in our national interest. Fortunately Teresa May acknowledged that the ultimate decision is one for Parliament, whilst also indicating that negotiations are taking place behind the scenes with other member states and the Commission. The Lords EU Select Committee will be holding an inquiry. This will be an opportunity to sort the myth from the reality.

It is disappointing however that the Government has not ignored the Eurosceptism, and taken this opportunity to seek amendments to measures like the EAW whilst we are in a strong position. After all, the decision is not due until June 2014. It is hard to see what real negotiation will be possible once we have left the table.

This guest post is by Jodie Blackstock, director of Criminal and EU Justice Policy and a barrister.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

4 comments


  1. obiterj says:

    Good material including list of the 134 measures at:

    http://www.statewatch.org/news/2012/oct/eu-cels-uk-opt-out-crim-law.pdf

    As i understand it, an opt out has to be all or nothing – cannot pick and choose. Opting back in to measures of choice may not be straightforward.

    Would UK seriously opt out of co-operation in areas such as terrorism. drug trafficking, child pornography etc. Overall the co-operation measures are beneficial even if some of them need to be “tweaked.”

  2. Rob Allen says:

    Thank you. This is the clearest account I have read of what the UK Government is doing. Where can I find a list of the 130 measures involved ?

    1. Obiterj says:

      List of measures in this very good publication:

      http://www.statewatch.org/news/2012/oct/eu-cels-uk-opt-out-crim-law.pdf

      As I understand it, any opt out has to be all or none. UK cannot pick and choose. Would UK seriously opt out of areas such as cooperation on child pornography on the internet etc. Overall, the cooperation measures are beneficial in the fight against crime/ terrorism.

  3. David Williamson says:

    Great post by Jodie Blackstock about the EU Criminal Justice, I also saw a lot in newspapers about the UK Government being minded to opt out in criminal justice measure and I was researching on that and your whole article explain everything. Nice contribution Jodie.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation deficit DEFRA Democracy village Dennis Gill dentist's registration fees deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disabled claimants disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 justification just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: