The European Union has drawn up a raft of proposals to fight organised crime across its nation states. But, Julia Bateman asks, can it ever agree on the best way to deal with this urgent and serious problem?

As member states of the European Union struggle with their domestic serious crime agendas - from race-hate murders in Amsterdam and Paris, to an explosion in gangland gun culture in north London - they are also facing the growing phenomenon of cross-border crime which they cannot deal with alone.


Europol's annual organised crime report emphasises the billions-of-euro-a-year business that is involved in the likes of drug smuggling, trafficking in human beings and financial crime. The collective EU response has been a raft of proposals for joint investigations, co-ordinated prosecutions and the ever-growing possibility of a European public prosecutor in an attempt to tackle cross-border criminal activity.


Many of these proposals are politically sensitive and therefore difficult for governments to agree on, let alone implement. So, as a first step in tackling an urgent problem, enhanced practical co-operation and effective information sharing appear to be more immediately rewarding areas for action. Among the top priorities for this information is access to criminal records in order to ensure that criminals do not evade justice by absconding from one member state to another. A clean slate in Belgium is less of a mitigating factor if someone has a string of convictions from Portugal to Poland.


While current arrangements among prosecuting authorities to share information on convictions do exist - mutual legal assistance provisions - there are serious gaps in co-ordination between different national authorities and information sharing is limited.


In response to this, the European Commission and governments have taken a number of steps to overhaul co-operation in this area. Agreement has already been reached on a legislative instrument designed to improve information-sharing on criminal convictions in other member states. Tight deadlines have been set for the necessary information to be provided and a standard form for requests has been drafted.


At present, member states can expect to be informed of the criminal records of its nationals in another member state on a once-yearly basis at best, but, in future, information should be transmitted immediately post-conviction. These arrangements are supposed to be in force by the end of June.


The second step is more controversial. In a strategy paper produced in January, the commission set out details of its proposal to create a European index of criminal records. This index is to include every criminal record handed down by a member state, excluding those that are spent. The theory is, therefore, that if a judge in one member state wanted to ascertain whether the defendant before him had a criminal record in another EU country, he could carry out an electronic search of the index. Where this yielded results, the judicial authorities could conduct a bi-lateral enquiry with their counterpart authorities to gather further details as to the nature of the offence and details of the conviction.


The next question is the purpose for which information obtained through the index can be used. This is dealt with in a communication just adopted by the commission on the mutual recognition of criminal convictions. While the EU cannot set down rules on how a previous conviction should be taken into account, the commission has proposed instead that foreign convictions should be treated as if they were national convictions in that particular member state. If previous convictions are used at pre-trial stage to determine which level of court will hear the case, then the foreign conviction will similarly be taken into account. If previous convictions are treated as an aggravating factor in sentencing, the same will be said of the foreign conviction.


Ultimately a standard format for a criminal record will be drawn up. That standard format will be accompanied by a dictionary of terms and legal concepts in order to facilitate understanding between judicial authorities as to what they are dealing with.


The developments above throw up a number of considerations, not least that of data protection, spent convictions and false identify. The European Data Protection Supervisor has already highlighted his concerns. The automatic use of a previous conviction in one member state in terms of recidivism purposes - that is, strict mutual recognition - is problematic. Although broadly it is possible to identify types of criminal behaviour that would 'fit' with another member state's definition of a similar crime, experience has shown that with extradition cases and European arrest warrant definitions, it is difficult to map equivalence across all European jurisdictions.


Using a conviction handed down in one member state to influence the sentencing in another could also be controversial in circumstances in which a conviction may be spent and is, therefore, no longer relevant to be taken into account. Further consideration needs to be given to how issues such as the rehabilitation of offenders can be integrated into a European criminal record.


One thing is clear: in the current climate, the exchange of information about criminal convictions and the use of this information in other European countries is only the tip of the iceberg.


Julia Bateman is justice and home affairs policy adviser in the Law Society's Brussels Office. E-mail: julia.bateman@lawsociety.org.uk