Criminal investigations post-Brexit

Mutual legal assistance (MLA) is co-operation between states in criminal investigations and prosecutions. It is based on reciprocity, mutual recognition and trust between states. It is a formalised procedure when the more informal law enforcement channels do not work, that is, collaboration between police officers directly or through Interpol/Europol.

MLA can occur in ad hoc circumstances or through treaties or agreements with other states. In relation to the EU, the UK has implemented a range of legislation concerning MLA which can be predominantly found in the Crime (International Co-operation) Act 2003.

European Investigation Orders

European Investigation Orders (EIOs) are a form of MLA which have found their way into UK legislation through the Criminal Justice (European Investigation Order) Regulations 2017 (SI 2017/730) (the regulations). The regulations have been in force since 31 July 2017 and are based on Directive 2014/41 (the directive) of the European Parliament and Council. It is an attempt to bring together all existing investigative MLA measures between EU member states and simplify the procedure when requesting another state’s assistance, making it a quicker and more effective process. In addition, EIOs apply to evidence not yet in existence and can encompass several specific investigative measures.

Guidance on EIOs

Guidance was published on EIO requests on 26 February 2018 by the Home Office. It sets out where to send a request in the UK and the procedure which is followed when EIOs are received in the UK. The UK Central Authority, part of the Home Office, deals with EIOs (except for tax and fiscal matters which should be sent to HMRC).

Applying for an EIO

An application for an EIO can be made to a judge or justice of the peace by a prosecuting authority or by a defendant. A judicial authority can make the order if (i) it appears that an offence has been committed, or that there are reasonable grounds for suspecting that an offence has been committed, and (ii) that proceedings in respect of the offence have been instituted or it is being investigated.

Investigative measures that can be requested include: hearing a witness, expert, suspect, accused person, victim or third party to obtain evidence from them, covert investigations, gathering evidence in real time, obtaining bank and financial information and interception of telecommunications.

The judicial authority needs to consider whether the order is necessary and proportionate, that the investigative measures could lawfully have been ordered or undertaken in a similar domestic situation and that any specific conditions imposed by the regulations are satisfied.

Time limits

Member states are required to recognise a request within 30 days and to execute a request within 90 days although extension of these time limits are possible.

Recognition and execution in the UK

In 2017, the UK Central Authority received 6,757 incoming requests for MLA of which 355 concerned EIOs. When an EIO is received in the UK, the UK Central Authority has to decide whether the EIO is valid and should not be refused. The regulations set out specific reasons for refusal including: the conduct to which the EIO relates is not an offence in the UK and is not listed in the list of offences mentioned in the directive punishable in the issuing state with a maximum of at least three years, incompatibility with any convention rights (human rights), or the execution would be contrary to the principle of ne bis in idem.

Challenging an EIO

Apart from arguing grounds for refusal of recognition and execution, a possible avenue to challenge an EIO is to apply to the judicial authority to vary or revoke the EIO in question.

The catchphrase in the directive is necessity and proportionality. The directive specifically states that an issuing authority should ‘pay particular attention to ensuring full respect for the rights as enshrined in Article 48’ (of the Fundamental Rights of the European Union, the presumption of innocence and the rights of defence in criminal proceedings). It means that those rights should be taken into account when exercising the possible investigative tools which are available under the directive and less invasive investigative measure should be chosen (by the executing authority who receives the request) if it achieves the same result.

Brexit

What will happen to the EIOs when Brexit happens end of March 2019? If the draft Withdrawal of the UK Agreement dated 14 November 2018 makes it through parliament (and as it stands now, the vote will go ahead on 14 January 2019), Title V of the Withdrawal Agreement entitled Ongoing Police and Judicial Cooperation in Criminal Matters states that the Directive 2014/41/EU shall apply in respect of EIOs received before the end of the transition period. The transition period ends 31 December 2020. After that, it will be determined by the deal that is negotiated between the UK and the EU.

 If the UK ends up in a ‘no deal’ scenario, it is uncertain what will happen. The UK may have to fall back on multiple individual agreements which would have the obvious downside of slowing cooperation down which ultimately is likely to have a detriment effect for both prosecution and defence, or perhaps a fall back could be the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters.

Conclusion

EIOs are a useful tool for both prosecution and defence. It remains to be seen if (and when) the Withdrawal Agreement makes it through parliament, whether or not EIOs will survive. Based on its short life so far, it has proven to be beneficial and is for the first time an avenue for the defence not just to challenge MLA but also to make use of MLA.

Marleen Bouwer is a solicitor at Byrne and Partners